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USMC | DRB | 2002_Marine | MD02-00834
Original file (MD02-00834.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD02-00834

Applicant’s Request
The application for discharge review, received 020520, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to convenience of the government. The Applicant requested a personal appearance hearing before the board in the Washington National Capital Region. The Applicant listed the American Legion as the representative on the DD Form 293. In the acknowledgement letter to the Applicant, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030410. 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 reason for discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.2.



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

 1. (Equity Issue) This former member requests that the Board include provision of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                941020 - 950122  COG

 Period of Service Under Review :
Date of Enlistment: 950123               Date of Discharge: 970630

 Length of Service (years, months, days):

         Active: 02 05 08 (Does not exclude time lost during this period)
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 42

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.3 (9)                       Conduct: 3.2 (9)

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR

 Days of Unauthorized Absence: 2 (960104-960105)

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.2.

 Chronological Listing of Significant Service Events :

960119:  NJP for violation of UCMJ Article 86:
 Specification: Unauthorized absence from 0630 on 960103 to 1730 on 960105 (2 days).
Awarded forfeiture of $223.00 per month for 1 month, restriction and extra duties for 14 days. Forfeiture of $123.00 for 1 month suspended for 6 months. Not appealed.
960220:  Page 11 entry: Applicant informed that he is eligible but not recommended for promotion to LCpl for the March 1996 promotion period because of failure to comply with MCO P1900.16D, being 10 lbs over weight limit, and currently being on weight control.

960322:  Page 11 entry: Applicant informed that he is eligible but not recommended for promotion to LCpl for the April 1996 promotion period because of failure to comply with MCO P1900.16D, being 10 lbs over weight limit, and currently being on weight control.

960620:  Page 11 entry: Applicant informed that he is eligible but not recommended for promotion to LCpl for the July 1996 promotion period because he is on weight control.

960820:  Late Page 11 entries: Applicant informed that he is eligible but not recommended for promotion to LCpl for the May and June 1996 promotion periods because he is on weight control.

961205:  Counseled for deficiencies in performance and conduct (After being removed from the weight control program on 960608, the Applicant's adverse condition reappears). Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970105:  Counseled for deficiencies in performance and conduct (On 970105 NJP was conducted on the Applicant; Applicant's inability to comply with the Uniform Code of Military Justice has established a pattern of misconduct). Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970117:  Counseled for deficiencies in performance and conduct (Failure to meet proper weight requirement in accordance with Marine Corps regulations; this failure reflects on the Applicant's performance as a Marine). Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970414:  Summary Court-Martial.
         Charge I: violation of the UCMJ Article 86.
         Specification: Unauthorized absence.
         Charge II: violation of the UCMJ Article 91 (2 specs):
         Specification 1:Disobeyed a lawful order from a petty officer.
         Specification 2: Disobeyed a lawful order from a SNCO.
         Charge III: violation of the UCMJ Article 92:
         Specification 1: Dereliction of duty.
         Finding: to Charge I, II, and III and the specifications thereunder, guilty.
         Sentence: Confinement for 30 days, reduction to Pvt.
         CA action 970414: Sentence approved and ordered executed.

970414:  Applicant to confinement.

970508:  Applicant from confinement.

970519:  Counseled for deficiencies in performance and conduct (Failure to meet proper weight requirements in accordance with Marine Corps regulations). You are being processed for administrative separation due to failure to comply with military weight standards.

970604:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions. The factual basis for this recommendation is the Applicant's numerous violations of the UCMJ, to include unauthorized absence (two occasions), disobedience of a lawful order (two occasions), and dereliction of duty.

970604:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

970604:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions. Commanding Officer comments: "The Respondent's actions clearly indicate unsuitability for future military service; therefore, I recommend that the Respondent be expeditiously discharged."

970612:  SJA review determined the case sufficient in law and fact.

970613:  GCMCA (Commanding General, Marine Corps Base, Hawaii) directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 970630 under other than honorable conditions for misconduct due to minor disciplinary infractions (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, through counsel, contends that aspects of his post-service conduct should be considered in the recharacterization of his discharge. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge even though 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. 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 documents that may be provided to the Board to receive consideration of relief based on post-service conduct. At this time, the Applicant has not provided any documentation for the Board to consider an upgrade to the characterization of discharge. Relief on this basis is therefore denied.

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 P1900.16E), effective 31 Jan 97 until Present.

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 following articles of the UCMJ: Article 91 Willfully disobeying a noncomissioned or petty officer and/or Article 92 Willful dereliction in performance of duties.
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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