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USMC | DRB | 2002_Marine | MD02-01137
Original file (MD02-01137.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD02-01137

Applicant’s Request
The application for discharge review, received 020809, 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 030515. 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. While in Basic Training in the Marine Corps my father died (V_ F_). I was young and immature and did not know how to handle the loss. So Ive made decisions and did things not intentionally that caused me to have a bad tour service in the Marine Corps. I'm now 27 years old, an as a older man I see things differently then before and I am making better decisions than before. I ask you to please upgrade my discharge and give me another chance to be one of the few and the proud.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                940623 - 950312  COG

 Period of Service Under Review :
Date of Enlistment: 950313               Date of Discharge: 970731

 Length of Service (years, months, days):

         Active: 02 04 19
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 39

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.7 (7)                       Conduct: 3.2 (7)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, Letter of Appreciation, Certificate of Commendation

 Days of Unauthorized Absence: None

 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 :

951013:  NJP for violation of UCMJ, Article 128:
 Specification: Unlawfully struck Private in the head and the back with an iron on 0610, 950930.
Awarded forfeiture of $400.00 per month for 2 months, restriction for 3 days. Forfeiture suspended for 4 months. Not appealed.
951013:  Counseled for deficiencies in performance and conduct. [Your assault on Private, by striking him in the head and back with an iron on 950930.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
960109:  Counseled for deficiencies in performance and conduct. [Your decision to reside off base at your own expense. Your decision to reside off base was made with total disregard and against the advice and recommendation of you SNCOIC.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
960123:  Counseled for deficiencies in performance and conduct. [Failure to be at appointed place of duty on 960122.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
960125:  Counseled for deficiencies in performance and conduct. [Failure to be appointed place of duty for morning clean-up at Bks 913 on this date.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
960126:  Counseled for deficiencies in performance and conduct. [Disrespectful in language and deportment towards his SNCOIC. While being counseled for the improper upkeep of my uniforms, I became extremely belligerent towards my SNCOIC. My lackadaisical attitude, disrespect for authority, and failure to adjust to military life are beginning to detract from the overall operation and morale of this S-1 section.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
960307:  Counseled for deficiencies in performance and conduct. [Financial irresponsibility. Specifically failure to make payment on my Differred Payment Plan (DPP). As a result of my financial irresponsibility, I was checked the fully amount by the Government and received "No Pay" for 960315 payday.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
970123:  NJP for violation of UCMJ, Article 86:
 Specification: Unauthorized absence from 0730-1630, 970117
Violation of UCMJ, Article 91:
Specification: Willfully disobeyed a lawful order from Corporal to go to appointed place of duty on 970117.
Awarded restriction and extra duties for 45 days, reduction to PFC. Restriction for 35 days and reduction to PFC suspended for 6 months. Not appealed.
970512:  Counseled for deficiencies in performance and conduct. [Writing checks with insufficient funds.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
970512:  Vacate suspended restriction for 35 days and reduction to PFC awarded at CO's NJP dated 970123.
970527:  NJP for violation of UCMJ (3 specs), Article 91:
 Specification 1: Disrespectful and belligerent towards SSgt
Violation of UCMJ, Article 92:
Specification 2: Willfully disobeyed a lawful order from SSgt who ordered PFC to assume the position of attention.
Violation of UCMJ, Article 117:
Specification 3: Made threatening gestures toward SSgt.
Awarded forfeiture of $450.00 per month for 2 months, restriction and extra duties for 45 days, reduction to Pvt. Forfeiture suspended for 6 months. Not appealed.
970611:  Counseled for deficiencies in performance and conduct. [Unauthorized absence from working party on 970607.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued
970628:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
970630:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

970709:  Commanding officer recommended discharge general (under honorable conditions) by reason of misconduct due to a pattern of misconduct. The factual basis for this recommendation was you pattern of misconduct as reflected in your service record
970725:  SJA review determined the case sufficient in law and fact.

970728:  GCMCA [Commanding General, 3d Marine Aircraft Wing] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

970729:  Vacate suspended forfeiture awarded at CO's NJP dated 970527.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 970731 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: Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the Applicant’s enlistment. While he may feel immaturity and the loss of his father were contributing factors, that does not mitigate the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrating he was unsuitable for further service. His service record is marred by award of non-judicial punishment (NJP) on three separate occasions thus substantiating the misconduct for which he was separated . 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.

 The Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities as requested in the issue. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered his discharge proper and equitable. Additionally, 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 only during the processing of a formal application for enlistment through a recruiter. Relief is therefore denied.

T here 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. .

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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