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USMC | DRB | 2002_Marine | MD02-01149
Original file (MD02-01149.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD02-01149

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 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 – Minor disciplinary infractions (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.2.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

 1. My discharge was inequitable because at the time of the infraction I was out processing the Marine Corps due to findings of a medical review board. Within days of separation from the Armed Forces with an honorable discharge, I feel that I was targeted and antagonized by supervisors whose intentions were to antagonize me enough so that they could bring me up on any type of disciplinary infraction thereby, having a reason to reverse my discharge to one were I would have no type of military benefits. Unfortunately they were successful and I was left with the same medical problems that I was chaptered out of the Marine Corps for but without any type of medical benefits.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant's DD Form 214
Certificate of military service, dated April 28, 1999
Police record, dated April 29, 2002
Kerr Business College transcript
Character reference, dated April 26, 2002
Character reference, undated
Character reference, undated
Character reference, dated July 8, 2002
Personal statement, dated July 8, 2002
Eighty-two pages from Applicant's service/medical record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                900220 - 900528  COG

 Period of Service Under Review :
Date of Enlistment: 900529                        Date of Discharge: 930527

 Length of Service (years, months, days):

         Active: 02 11 29
         Inactive: None

 Age at Entry: 17 Parental Consent                Years Contracted: 4

 Education Level: 12                                 AFQT: 44

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.0 (14)                      Conduct: 3.9 (14)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SASM (3), KLM, SSDR, NUC, MUC

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct-Minor disciplinary infractions (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.2.

 Chronological Listing of Significant Service Events :

920713:  Counseled for deficiencies in performance and conduct. [Discrepancies of insubordinate conduct toward a noncommissioned officer on 920701 and unauthorized absence on 920626. These are offenses that will not be tolerated in the future.] Disciplinary and discharge warning issued.

920916:  Counseled for deficiencies in performance and conduct. [Driving on revoked state driving license and that I am unable to operate a motor vehicle until I am issued a valid state license. Driving privileges being revoked aboard Camp Lejeune, NC for a period of one year until 2400, 13 Sept 93. This revocation includes all other Marine Corps installations, family housing area, approach roads to these bases or area and all installation gates.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

930315:  Applicant being processed for a physical evaluation board. Initial diagnosis: post traumatic low back pain. Recommended limitation of duty: No PFT, drilling, squatting, digging, guard duty, prolonged standing, formation (over 10 minutes), lifting weights (over 10 lbs), kneeling, jumping, crawling, firing range, driving military vehicles.

 930326:  NJP for violation of UCMJ, Article 92 (2 specs):
 Specification 1: Failure to obey a lawful general order on 921217, to wit: BOP5560.2J dated 921229, by wrongfully driving his POV on base under state suspension.
Specification 2: Failure to obey a lawful general regulation on 930105, to wit: BOP5560.2J, by failing to register his vehicle properly.
Violation of UCMJ, Article 134 (2 specs):
Specification 1: Wrongfully trying to obtain a visitors pass then knowing the same to be unauthorized on 930106.
Specification 2: Make to GySgt, an official statement, to wit: my driving privileges were reinstated because I paid a fine out in town and I was found guilty and received no punishment on 930106.
Violation of UCMJ, Article 81:
Specification: Conspire to commit an offense under the UCMJ on 930105, to wit: to fraudulently register his vehicle in someone elses name who was not his wife.
Awarded forfeiture of $400.00 per month for 2 month, restriction for 30 days, reduction to PFC. Forfeiture and restriction suspended for 6 months. Not appealed.
930423:  NJP for violation of UCMJ, Article 92 (2 specs):
 Specification 1: Violate BO 1020.8U, dated 900118, by not having a proper shave.
Specification 2: Violate BO 1020.8U, dated 900118, by wearing an improper uniform, to wit: camouflage utilities without a cover, blouse or belt.
Awarded forfeiture of $300.00 per month for 2 months, restriction for 30 days, reduction to Pvt. Forfeiture and restriction suspended for 6 months. Not appealed.
930510:  Counseled for deficiencies in performance and conduct. [Misconduct as evidenced by a pattern of minor disciplinary infractions which has resulted in being the subject of counseling for insubordinate conduct and driving while on state revocation and being the subject of Article 15, nonjudicial punishment on 930326.] Necessary corrective actions explained, sources of assistance provided. Applicant refused to sign counseling.
930514:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.
930517:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

930517:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions. The factual basis for this recommendation was adverse page 11 entries of 920713 and 920916, and nonjudicial punishments of 930326 and 930423.

930520:  SJA review determined the case sufficient in law and fact.

930524:  GCMCA [Commanding General, 2d Force Service Support Group] 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 930527 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).

Issue 1. Separation for misconduct takes precedence over a pending discharge for medical reasons (E). While he may feel that the actions of his chain of command were factors that contributed to his misconduct, the record clearly reflects his disregard for the requirements of military discipline and demonstrated that he was unfit for further service. 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. Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. 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. The Veterans Administration determines eligibility for post-service benefits, not the NDRB. There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans’ benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. 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 P1900.16D), effective 27 Jun 89 until 17 Aug 95.

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 81, conspiracy, Article 92, failure to obey a lawful general order, Article 134, false pass.
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 1850.4C of March 1990 (Disability Evaluation Manual), paragraph 3403, Disciplinary or Misconduct Administrative Action.

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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