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USMC | DRB | 2002_Marine | MD02-00766
Original file (MD02-00766.rtf) Auto-classification: Denied


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


ex-LCpl, USMCR
Docket No. MD02-00766

Applicant’s Request
The application for discharge review, received 020506, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to Expiration of Active Service. The Applicant requested a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030206. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the Applicant’s service. The Board’s vote was unanimous that the character and narrative reason of the discharge shall not change. The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/NON-RETENTION ON ACTIVE DUTY, authority: MARCORSEPMAN Par. 1005.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues
1. With regard to Section 3a of my request, I warrant an Honorable Discharge, in that, as provided by paragraphs 1004.2b(1), 1004.3a, and their respective references, my military service record qualified under the provision that considers as exceptions, "meritorious military record," and records that are "otherwise so meritorious that any other characterization would be clearly inappropriate." Item 7, Documents 1-26 clearly corroborate this assertion.
2. With regard to Section 3d of my request, the reason for my discharge, albeit involuntary (no further service), was, per Item 7, Document 27, Paragraph 1, due to my failure to be selected for Career Designation (AR). Further, and without condition or qualification, Paragraph 8 directs that my Program Designator Code was to be LBK2. There was no specific authority given to assign a Reentry Code other than RE1_. And despite what administrative action occurred between issue of Document 27 and my EAS, neither specific direction, nor authorization, was given to make a determination other than that which was stated in said Document. Documents 1, 2, and 28 further corroborate my assertion to that effect that I merited nothing less. Original copies of Document 28 were delivered to my home and my unit by Arcadia Police Officers on the date of its writing, however, the unit copy was withheld from my Commanding Officer by the Administrative Chief, Gunnery Sergeant O_ B. S_ until after my discharge.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant's ltr to the Board dtd Apr 22, 2002
 1 - Letter of Support from Major S_ H. F_, USMC of May 27, 1997
 2 - Letter of Support from Staff Sergeant W_ W. D_, USMCR of Apr 4, 1998
3 - Navy Achievement Medal (2 nd award) certificate and citation of Jan 26, 1996
4 - Navy Achievement Medal (1 st award) certificate and citation of Mar 19, 1993
5 - Personal Award Recommendation (NMCAM) of Jan 30, 1997
 6 - CO's Certificate of Commendation of Sep 29, 1996
 7 - CO's Certificate of Commendation of Feb 25, 1991
8 - CO's Certificate of Commendation of Apr 12, 1990
 9 - Meritorious Mast of Nov 5, 1991
 10 - Meritorious Mast of Sep 1, 1990
11 - Meritorious Mast of Jun 26, 1990
 12 - Meritorious Mast of Apr 26, 1987
 13 - Certificate of Good Conduct (second award) of Apr 12, 1996
14 - Selected Marine Corps Reserve Certificate of Nov 12, 1989
 15 - Warrant or Promotion to Sergeant (Meritoriously) of Feb 2, 1991
 16 - Career Designation Endorsement of Nov 27, 1996
 17 - Career Designation Endorsement of Nov 27, 1995
 18 - Career Designation Endorsement of Jan 13, 1993
 19 - FTS Endorsement of Sep 19, 1990
 20 - Meritorious Promotion Recommendation of Jan 11, 1991
21 - Fitness Report covering 1 Aug 97 to 19 Feb 97
 22 - Fitness Report covering 1 Aug 95 to 31 Jul 96
 23 - Certificate of Honorable discharge of Feb 22, 1994
 24 - Certificate of Reenlistment of Feb 23, 1994
 25 - MCP letter 1040/MORE of Sep 20, 1995
26 - Major S_ H. F_ Letter of Recommendation of Apr 21, 1997
 27 - CMC letter 1001/RAM-2 of Jan 6, 1997
 28 - City of Arcadia, CA Police Chief letter of Feb 18, 1997
 Copy of DD Form 214 (2 copies)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMCR             890220 - 940222  HON
          Inactive: USMCR           860601 - 890219  To commence ACDU
          Active: USMCR             850912 - 860531  Released IADT
          Inactive: USMCR           850723 - 850911  To report IADT
                   USMCR            850131 - 850315  ELS (Moral Disqualification)

 Period of Service Under Review :
Date of Enlistment: 940223               Date of Discharge: 970219
Length of Service (years, months, days):
         Active: 02 11 27
         Inactive: None
Age at Entry: 28                          Years Contracted: 3

 Education Level: 13½               AFQT: 98
Highest Rank: SGT

 Final Enlisted Performance Evaluation Averages: All performance reports were available to the Board for review.

 Military Decorations: None
Unit/Campaign/Service Awards: LoA(4), MM(4), CoC(3), GCM(2), NMCAM(2)

Days of Unauthorized Absence: None
Character, Narrative Reason, and Authority of Discharge (administratively corrected):

GENERAL (UNDER HONORABLE CONDITIONS)/NON-RETENTION ON ACTIVE DUTY, authority: MARCORSEPMAN Par. 1005.
Chronological Listing of Significant Service Events :

940223:  Reenlisted USMCR for 3 years at 4 th LAAD BN, MACG-48, 4 TH MAW, Pasadena, CA.
941116:  Counseled for deficiencies in performance and conduct [continued recalcitrant conduct and pattern of misconduct relative to alcohol consumption/abuse and disdainful demeanor directed towards 1stSgt M_ (Battalion Sergeant Major/First Sergeant) through a continuous string of unsolicited verbalistic attempts to debase the aforementioned First Sergeant]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
961210:  NJP for violation of UCMJ, Article 91: Disrespectful in language and deportment toward SSgt D_ by flicking a lit cigarette at his chest and saying "eat me" at Shilo Inn, Diamond Bar.
 Awarded forfeiture of ½ of one months pay for 2 months (total forfeiture $1394.70), restriction for 60 days and extra duties for 45 days, reduction to E-4. All suspended for 6 months, except $200 pay for 2 months. Not appealed.
970106:  CMC advised Applicant that he was not selected for continuation on active duty by the AR Enlisted Career Designation Board and provided the Applicant the option of being released from active duty at Expiration of Active Service (EAS) and transferred to the Individual Ready Reserve (IRR) or discharged as appropriate. Applicant was further advised that concerning possible entitlement to separation pay, his local unit must make a recommendation for either full or half separation pay and as a condition for receiving separation pay, the service member must agree to serve in the Ready Reserve for a period of not less than three years following separation from active duty.
970212:  NJP imposed and suspended on 961210 for period of 6 months is vacated and punishment of reduction to E-4 ordered executed this date. All other punishment remains suspended.

 970213:  NJP for violation of UCMJ, Article 111: Drunken or reckless operation of a vehicle on or about 2350, 13 Dec 1996; violation of UCMJ, Article 112: Drunk on duty on or about 13 Dec 1996.
 Awarded forfeiture of $588.35 per month for 2 months (suspended for 6 months), restriction for 30 days (suspended for 6 months), reduction to E-3. Not appealed.
970219:  Applicant discharged under honorable conditions (general) with a SPD code of JGH2 (NON RETENTION ON ACTIVE DUTY), authority MARCORSEPMAN, Para 1005.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 970219 under honorable conditions (general) by reason of non-retention on active duty (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. A characterization of service of under honorable conditions (general) is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. T he Applicant’s service during his final enlistment was marred by award of nonjudicial punishment (NJP) on two occasions and an adverse counseling entry on another occasion. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service. An upgrade to honorable would be inappropriate. It must be noted that most Marines serve honorably and well and therefore earn honorable discharges. In fairness to those Marines, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due. Relief denied.
Issue 2. The Applicant’s claim that his separation code should be “LBK2” is without merit. The above separation code implies that the Applicant would have been released from active duty and transferred to a reserve component. However, after his second NJP in the current enlistment, the Applicant was discharged from service, which means a complete severance from all military status. The Applicant was also assigned a reenlistment code of “RE-4.” A Marine may be discharged within 60 days of his obligated service period and his service obligation will be considered fulfilled (F). The Applicant failed to provide sufficient documentation to support his assertion that the separation authority violated CMC guidance, given a second NJP. The documentation provided did not mitigate the Applicant’s misconduct. The narrative reason for discharge and separation code the Applicant received on his DD Form 214 are proper and equitable. Relief denied.
The Applicant’s discharge characterization accurately reflects his service to his country. Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity is evident during the Applicant’s enlistment. Additionally, there is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in civilian life, subsequent to leaving the service. Relief not warranted.

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. Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective
18 Aug 95 until Present, Paragraph 1005, DISCHARGE FOR EXPIRATION OF ENLISTMENT OR FULFILLMENT OF SERVICE OBLIGATION .

B . The Marine Corps Separation and Retirement Manual, (MCO P1600.19E), effective 950818 until Present, Paragraph 6412, NOT SELECTED FOR PROMOTION TO STAFF SERGEANT/GUNNERY SERGEANT .

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.
F. Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective
18 Aug 95 until Present, Paragraph 1006, TIME AND PLACE OF SEPARATION.

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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