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USMC | DRB | 2002_Marine | MD02-00756
Original file (MD02-00756.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT

ex-PVT, USMC
Docket No. MD02-00756

Applicant’s Request
The application for discharge review, received 020430, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions. The Applicant requested a documentary record discharge review. The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030214. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned no impropriety or inequity in the characterization of the Applicant’s service. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Pattern of misconduct (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. I M_ S. S_, would like the Board to review my discharge from the Marine Corps. There are reasons behind the UA/AWOL's. Some of them are from poor judgement on my part, but I am only human I was young and nieve young man back in 1987-1990.
As for the UA on 89/07/05 to 89/07/09 I made a mistake and did not bring my drivers license with me on a drive. I was pulled over and jailed for not having it with me. I was unable to bail myself out of jail, therefore I was UA until the local authorities released me. I immediately returned to duty. The entire time that I was in jail I was in communication with my company commander and kept him apprised of my situation. As for the UA on 89/08/23 to 89/08/27 I had unknowingly written a "bad" check to Little Ceasars Pizza for 8.88. There was an error with the Marine Corps Finance with my direct deposit not being posted to my account on time. I was then deployed to Puerto Rico for approximately 30 days. Upon my return from deployment I was told I had to report to a department on base and then was turned over to the local authorities. Again, I was in contact with my company commander. As for the UA on 89/09/20 to 89/10/04 I had lent my POV to a fellow Marine while I was on TDY to Texas. Upon my return from TDY I had found out that he had taken my POV and was UA/AWOL. I had requested leave to go retrieve my vehicle, but was denied by my company commander. I foolishly disobeyed a direct order and left to go get my vehicle which took me considerably time to locate my vehicle. When the vehicle was found in the state of Indiana, I immediately drove to the nearest Marine Corps Reserve base (in Kansas) and turned myself in. During that time I made a few bad choices. As I have grown older I have regretted the thing I did while in the Corps. I have always been proud of my service with the Marines and will always continued to be proud. I am trying to upgrade my discharge because I am wanting to improve myself with a career as a Correctional Officer with the Federal Bureau of Prisons. Sincerely [Applicant]

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from Applicant
Copies of DD Form 214 (2)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                None

 Period of Service Under Review :
Date of Enlistment: 870220               Date of Discharge: 900119

 Length of Service (years, months, days):

         Active: 02 11 00 (does not exclude lost time)
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 27

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.8 (9)                       Conduct: 3.4 (9)

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR

 Days of Unauthorized Absence:    22: (4)890705-890709; (4)890823-890827;
                   (14)890920-891004.
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Pattern of misconduct (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.3.

 Chronological Listing of Significant Service Events :

871204:  NJP for violation of UCMJ, Article 121: In that PFC S_ did, at or about 2100 on 871123 wrongfully appropriate LCpl L_'s POV, a 1973 Chevrolet Corvette, until at or about 2359 on 871123; violation of UCMJ, Article 134: In that PFC S_ did, at or about 2100 on 871123 wrongfully enter the property of LCpl L_, to wit: LCpl L_'s wallocker.
         Award: Forfeiture of $329.00 pay per month for 2 months, restricted to the area limits of MCSFCO, NMS Earle without suspension from duty for a period of 45 days, EPD for a period of 45 days to run concurrently with restriction, reduction to E-1. Not appealed.

890412:  Counseled regarding financial irresponsibility, specifically, four bad checks in a one-month period. Advised that help in these matters is available through his squad leader, platoon Sergeant, and platoon Commander.

890705:  Absent without authority from 0530 on 890705 to 1500 on 890709
         (4 days).

890718:  NJP for violation of UCMJ, Article 86: UA (AWOL) from Co E, 2dBn, 4thMar from 0530 on 890705 until 1500 on 890709 (4 days); violation of UCMJ, Article 92: In that SNM did, at or about 0530 on 890705 disobey base regulations by exceeding the 50-mile overnight liberty limit.
         Award: Forfeiture of $391.00 pay per month for 2 months, 45 days restriction, 45 days extra duty to run concurrently without suspension from duty, reduction to E-2. 38 days restriction and 38 days extra duty suspended for 6 months. Not appealed.

890823:  Absent without authority from 0700 on 890823 to 2200 on 890827
         (4 days).

890901:  Counseled for deficiencies in performance and conduct. (Insufficient funds, and lack of integrity toward section leader.) Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

890906:  Punishment imposed and suspended at NJP on 890718 for a period of 6 months is vacated and the punishment is ordered executed.

890920:  Absent without authority from 2001 on 890920 until 1020 on 891004
         (14 days).

891104:  NJP for violation of UCMJ, Article 86: UA/AWOL at 2dBn, 4thMar, 2dMarDiv, at or about 2001 on 890920 until 1020 on 891004 (14 days).
 Awarded forfeiture of $349.00 pay per month for 2 months, restriction and extra duties for 45 days, reduction to E-1. Not appealed.
891205:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
891205:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights.

891205:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct. Commanding Officer comments: "The factual basis for this recommenda-tion is the respondent's nonjudicial punishments of 4 December 1987, 18 July 1989, 4 November 1989 and his adverse page 11 entry of 1 September 1989....Retention of the respondent would adversely effect the morale, discipline, and military effectiveness of this organization."

900104:  SJA review determined the case sufficient in law and fact.

900108:  GCMCA (Commanding General, 2d Marine Division, Camp Lejeune) directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 901019 under other than honorable conditions for misconduct due to a pattern of misconduct (A and B). The Board presumed regularity in the conduct of governmental affairs (C). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (D and E).

Issue 1: The Applicant contends that there were mitigating circumstances to the periods of unauthorized absences and subsequent nonjudicial punishments as well as to the counseling entries in his service record. Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. The Board found no such error or inequity to have occurred during that time. Further, t he NDRB found credible evidence of misconduct in the service record of the Applicant. This misconduct did warrant processing for separation as initiated by the Applicant's command. The three nonjudicial proceedings, the several page 11 entries, the statements from the Applicant's chain of command, and the review by legal authority all indicate the propriety and equity of the discharge process and t he Applicant’s discharge characterization accurately reflects his service to his country. Relief is denied .
The Board is recommending to the Marine Corps Headquarters, Quantico, VA, that the Applicant's DD Form 214 be corrected to reflect proper name and correct birth date.

The following is provided for the edification of the Applicant. There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service. However, the NDRB is authorized to consider post-service factors in the recharacteriza-tion of a discharge. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the Applicant's performance and conduct during the period of service under review may be considered. Verifiable proof of post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. Evidence of continuing educational pursuits, an employment record, documentation of community service, and certification of non-involvement with civil authorities are examples of verifiable documents that may be provided to receive consideration for relief based on post-service conduct. At this time, the Applicant has not provided such documentation for the Board to consider.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his discharge. Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

 A. Paragraph 6210, Misconduct , of the Marine Corps Separation and Retirement Manual, ( MCO P1900.16D), effective 27 Jun 89 until 17 Aug 95.

B. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 86, unauthorized absence for more than 30 days.
C. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

E. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

PART IV - INFORMATION FOR THE APPLICANT
If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive. You should read Enclosure (5) of the Directive before submitting such a complaint. The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Directive 1332.28 and other Decisional Documents by going online at “ afls14.jag.af.mil ”.

The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                  720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023      

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