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USMC | DRB | 2002_Marine | MD02-01135
Original file (MD02-01135.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD02-01135

Applicant’s Request
The application for discharge review, received 020805, 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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030522. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned that the Applicant was improperly discharged under: MARCORSEPMAN Par. 6210.3 due to an administrative error by the Applicant’s command. The NDRB discerned no inequity in the characterization of the Applicant’s service, but did discern an impropriety in the reason for the discharge, and determined that partial relief is warranted. The Board’s vote was unanimous that the character of the discharge shall not change but unanimous the reason for discharge will change. The discharge shall change to: GENERAL (UNDER HONORABLE CONDITIONS)/COMPLETION OF REQUIRED ACTIVE SERVICE, authority: MARCORSEPMAN Par. 1005, Separation Code of KBK.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

 1. In accordance with Item 8 of reference (a), this document will serve as the issues to support Item 3 of reference (a).

2. I was discharged from the United States Marine Corps on 20 June 2001. My character of service is currently defined as General/ Under Honorable Conditions.

3. During the length of my service, I was subject to Non-Judicial Punishment (NJP) on 4 separate occasions: 10 April 1997, 30 November 1999, 7 April 2001 and 4 June 2001.

4. I understand that my service record does not reflect exemplary service, however, I do believe that there are extenuating and/or mitigating circumstances that may explain how my service record came to poorly reflect my term of service.

5. I do not dispute the Uniform Code of Military Justice (UCMJ) violations and the subsequent NJP awards from dates 10 April 1997, 30 November 1999 and 7 April 2001.

6. I do dispute the 4 June 2001 UCMJ violation charge and NJP award. The Notification and Election of Rights that was issued on 7 May 2001 states the two specific charges that were before me at that time. The first charge was for two violations of UCMJ Article 86 (Unauthorized Absence) of the UCMJ that occurred during the period of 28 and 29 April 2001.

7. The second charge of the 4 June 2001 UCMJ violation is an Article 92 (Failure to Obey Order or Regulation) violation. The notification states that the charge is for the failure to obey an order given by my Staff Non-Commissioned Officer In Charge (SNCOIC) to report for a formation muster at 0700 hours on 27 April 200 1. The notification also states that not only I, but also the rest of my unit had received this order. On or before 27 April 2001, there was no order given to the unit or myself for a formation at 0700 hours.

8. During the 4 June 2001 NJP hearing I disputed these charges. However, the MALS 42 Commanding Officer dismissed my protests.
9. Due to the 4 June 2001 NJP I was assigned a reenlistment code of RE-4.

10. Due to the 4 June 2001 NJP, an attempt was made to discharge me for administrative reasons. In addition to the administrative discharge attempt, an attempt was made to award me with a General/ Under Other Than Honorable Conditions by the MALS 42 Commanding Officer.

11. I was discharged with a General/ Under Honorable Conditions discharge on 20 June 2001 due to the work of Major M_ B_ (NAS JRB New Orleans NLSO).

12. Prior to my assignment to MALS 42 NAS Atlanta, I had only been charged with a UCMJ violation once. After being assigned to NAS Atlanta in August of 1998, I was charged with three UCMJ violations two years. Two of the charges were within two months of each other.

13. 20 June 2001 was my actual EAOS.

14. I do not believe that I should have been awarded a reenlistment code of RE-4 and a General/ Under Honorable Conditions discharge. I successfully completed the term of my enlistment contract (which was 5 years) in the USMC.

15. I request that my discharge be changed to an Honorable Discharge and my reenlistment and eligibility code amended from a RE-4 to a favorable RE code.

16. Although I have made poor decisions in my past military service while a member of the USMC, I believe that I have learned a lot of lessons in the short period of time since I have been discharged. If I were to decide to reenter the military, my current status prevents me from doing so.

17. I wish to better myself in preparation for a career in or out of the military. I believe that the way to do this is to return to school and work extremely hard to receive a college degree. Without the assistance from the GI Bill, I will not be able to afford a college education. With my current discharge, I cannot apply for VA educational benefits.

18. I believe that since I have left the military I have become a productive citizen and I continually strive to better myself I believe that I have left a part of myself behind in the Marine Corps. I feel that I have recognized what I have done wrong while in the Corps and I know now that I can do much better, given another opportunity presents itself.

19. I plead with the board to take into consideration my work performance and accomplishments from my military career and I thank you for the consideration of this appeal.



Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of Unit Punishment Book (5812) page for April 7, 2001 NJP
Statement to MALS 42 Commanding Officer dated April 6, 2001
Notification and Election of Rights concerning the contemplated imposition of Non-Judicial Punishment
Notification of Discharge Proceedings, dated May 9, 2001
Acknowledgement of Rights to be Exercised or Waived in Connection with Discharge Proceedings, dated May 9, 2001
Recommendation for Administrative Discharge from the Commanding Officer, dated May 9, 2001
Request for Conditional Waiver of Administrative Board, dated May 25, 2001
Applicant's DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                950630 - 960616  COG

 Period of Service Under Review :
Date of Enlistment: 960617               Date of Discharge: 010620

 Length of Service (years, months, days):

         Active: 05 00 04         Does not exclude lost time
         Inactive: None

 Age at Entry: 18                          Years Contracted: 5

 Education Level: 12                        AFQT: Unreadable

 Highest Rank: Cpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: NMF                           Conduct: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: MUC (2), N&MCOSR

 Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.3.

 Chronological Listing of Significant Service Events :

970410:  NJP for violation of UCMJ, Article 86:
 Specification: Unauthorized absence from 0650-0750, 970407.
Awarded restriction and extra duties for 14 days, reduction to Pvt. Reduction suspended for 6 months. Not appealed.
970708:  Counseled for deficiencies in performance and conduct. [My failure to maintain Marine Corps physical fitness standards by failing to pass the PFT on 970630.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
990604:  Counseled for deficiencies in performance and conduct. [Failure to be at appointed place of duty in a timely fashion. Poor performance/dereliction of duty by failure to adequately complete assigned tasks.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
991130:  NJP for violation of UCMJ, Article 81:
 Specification: Conspiring with another to commit adultery, between 990608 and 990705.
Violation of UCMJ, Article 92:
Specification: Disobeying a lawful order.
Violation of UCMJ, Article 107:
Specification: Making false official statements
Violation of UCMJ, Article 134:
Specification: Committing adultery by wrongfully having sexual intercourse with a married woman.
Awarded forfeiture of $300.00 per month for 2 months, restriction and extra duties for 45 days, reduction to LCpl. Forfeiture and restriction suspended for 6 months. Not appealed.
010407:  NJP for violation of UCMJ, Article 86:
 Specification: Unauthorized absence on 0700, 010308, to wit: late for morning muster after being counseled on this matter on numerous occasions.
Violation of UCMJ, Article 92:
Specification: Failure to obey order or regulation on 010228 and again on 010307 received an order not to park in designated parking spaces, but continued to do so and was cited by NAS Security.
Awarded forfeiture of $584.00 per month for 2 months, restriction and extra duties for 45 days, reduction to PFC. Forfeiture and reduction suspended for 3 months. Not appealed.
010509:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
010509:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct. The factual basis for this recommendation was on 10 April 1997, 30 November 1999, and 7 April 2001, you received nonjudicial punishment. This conduct with such a pattern of both minor and more serious infractions establishes a pattern of failure to comply with the good order and discipline of the Marine Corps.

010525:  Applicant waived his right to an administrative discharge board contingent upon receiving a general (under honorable conditions) discharge.
010529:  Commanding Officer forwarded conditional waiver, recommending approval.
010604:  SJA review determined the case sufficient in law and fact.

010604:  GCMCA [Commander, Marine Forces Reserve] directed the Applicant's discharge general (under 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 010617 with a characterization of general (under 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 characterization of Applicant’s service upon discharge was equitable and proper (D and E) but narrative reason for discharge was incorrect.

Contrary to MARCORSEPMAN Par. 1008.2B, the Applicant was involuntarily retained on active duty past his release date to complete his administrative discharge. The Board’s vote was unanimous that this fact warrants a change to the narrative reason for separation. Partial relief is therefore granted on the basis of the fact the Applicant was retained beyond his end of obligated service. The member’s service record will be changed to reflect that he completed his full enlistment. His discharge will read: GENERAL (UNDER HONORABLE CONDITIONS)/COMPLETION OF REQUIRED ACTIVE SERVICE.

Concerning the characterization of service, the Board could discern no impropriety or inequity which warrants an upgrade to the characterization of service. A characterization of service of general (under honorable) conditions is warranted when the service member’s conduct constitutes a departure from that expected of a Marine. The record is void of any evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. The Applicant’s service record is marred by award of non-judicial punishment (NJP) on three separate occasions, to include the appropriate retention and discharge warnings . The Applicant’s summary of service clearly reflects the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the Marine Corps. 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. An upgrade to honorable conditions would be inappropriate. Relief denied.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Marine Corps or any other branch of the Armed Forces. Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment. A request for waiver is normally done during the processing of a formal application for enlistment through a recruiter. The Applicant may submit an application to the Board of Correction of Naval Records (BCNR) to change his reenlistment code. Additionally, the Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board (NDRB). There is no requirement or law that grants recharacterization solely on the issue of obtaining Veteran’s educational benefits and this issue does not serve to provide foundation upon which the Board can grant relief. Relief is therefore denied.
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. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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. Verifiable proof of any 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, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct. At this time, the Applicant has not provided any verifiable documentation of good character and conduct to mitigate his misconduct while on active duty. Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge. The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time. 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 [e.g., 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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