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USMC | DRB | 2002_Marine | MD02-00925
Original file (MD02-00925.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD02-00925

Applicant’s Request
The application for discharge review, received 020612, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested a documentary record discharge review. The Applicant did not list any representative on the DD Form 293. Subsequent to the application, the Applicant obtained representation from the Veterans of Foreign Wars.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030319. 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 of the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

 1. To Whom it May Consern requesting discharge to be update to Honerable do to father's health during service at which time I was denied leave due to a Red Cross message received that my father was having heart surgery at that time my command denied leave

 Applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning his application. His records were reviewed on 11/12/02 and the following comments are hereby submitted:

We concur with the Applicant's contention that his discharge be upgrade

We refer this case to the Board for their careful and compassionate consideration and request the Applicant's discharge be reviewed for upgrading the Applicant's discharge to Honorable.

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant's DD Form 214 (2 copies)
Front page of DD Form 293 obtaining counsel received June 19, 2002
Applicant's DD Form 215

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                Unknown, if any  COG

 Period of Service Under Review :
Date of Enlistment: 971029               Date of Discharge: 991028

 Length of Service (years, months, days):

         Active: 02 00 00         Does not exclude lost time
         Inactive: None

 Age at Entry: 25                          Years Contracted: 4

 Education Level: 12                        AFQT: 31

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: NMF*                          Conduct: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 72

*No Marks Found in the service record.

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.3.

 Chronological Listing of Significant Service Events :

981119:  Applicant found fit for confinement.

990202:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86.
         Specification: Unauthorized absence from 980908 until 981119 (72 days/apprehended).
         Finding: to Charge I and the specification thereunder, guilty.
         Sentence: Forfeiture of $639.00, confinement for 30 days, reduction to Pvt.
         CA action 990202: Sentence approved and ordered executed.

990202:  Applicant found fit for confinement.

990224:  Counseled for deficiencies in performance and conduct. [Unauthorized absence from remedial PT on 990223.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
990322:  NJP for violation of UCMJ, Article 86:
 Specification: Unauthorized absence from remedial PT formation on 990309 and 990312.
Violation of UCMJ, Article 92:
Specification: Failure to obey lawful order, to wit: attend remedial PT Monday-Friday at 0600.
Awarded forfeiture of $479.00 per month for 2 months, correctional custody for 30 days. Not appealed.
990322:  Counseled for deficiencies in performance and conduct. [Unsatisfactory performance in duties. Sent to CCU for discipline reasons and refused to train. Returned to unit. Applicant advised to follow all orders from superiors.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
990624:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 92.
         Specification: Willfully disobey a lawful order on 990322, to wit: to sound off and to train.
         Finding: to Charge I and the specification thereunder, guilty.
         Sentence: Forfeiture of $369.00, confinement for 28 days.
         CA action 990630: Sentence approved and ordered executed except for that portion of the punishment adjudging forfeiture of $369.00 and confinement for 28 days which is suspended for 6 months.
991028:  DD Form 214: Applicant discharged under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

Discharge package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 991028 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. A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a Marine. T he Applicant’s service was marred by one award of nonjudicial punishment (NJP), plus summary court-martials on two occasions and adverse counseling entries on other occasions. 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. While he may feel that a family problem was a factor that contributed to his actions, the record is devoid of evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. An upgrade would be inappropriate. 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. 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 UCMJ, Article 86, unauthorized absence for more than 30 days; Article 92, failure to obey a lawful general order.
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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