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USMC | DRB | 2002_Marine | MD02-01212
Original file (MD02-01212.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD02-01212

Applicant’s Request
The application for discharge review, received 020819, 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, authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

 Prior to the documentary discharge review, the Applicant introduced no issues as Block 8 on the DD Form 293 is blank.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Statement from Applicant, dated July 2, 2002

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                910405 - 920203  COG

 Period of Service Under Review :
Date of Enlistment: 920204               Date of Discharge: 960205

 Length of Service (years, months, days):

         Active: 03 11 27
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 31

 Highest Rank: Pvt

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.1 (12)             Conduct: 4.1 (12)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR, GCM, Letter of Appreciation (2)

 Days of Unauthorized Absence: 3

 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 :

950123:  Counseled for deficiencies in performance and conduct. [Confiscation of military ID and Weapons Card on or about 960101 by Tijuana authorities.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
950412:  Applicant completed Level II treatment.

950428:  Applicant to unauthorized absence 0710, 950428.

950501:  Applicant from unauthorized absence 0645, 950501 (3 days/surrendered).

950615:  NJP for violation of UCMJ, Article 92:
 Specification: Ordered to go shave and return to Sgt before checking out of BAS on 0710, 950428, failed to report to company area until 0645, 950501.
Violation of UCMJ, Article 86 (6 specs)
Specification 1: Unauthorized absence from 0710, 950428 until 0645, 950501 (3 days/surrendered).
Specification 2: Unauthorized absence from morning rehabilitation on 0600-0700, 950515.
Specification 3: Unauthorized absence from morning rehabilitation on 0600-0700, 950516.
Specification 4: Unauthorized absence from morning rehabilitation on 0600-0700, 950517.
Specification 5: Unauthorized absence from morning rehabilitation on 0600-0700, 950518.
Specification 6: Unauthorized absence from morning formation on 0700-1245, 950525.
Awarded forfeiture of $150.00 per month for 1 month, restriction and extra duties for 45 days, reduction to PFC. Reduction suspended for 6 months. Not appealed.
950628:  Counseled for deficiencies in performance and conduct. [Unauthorized absence which resulted in BN NJP on 960615.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
950705:  Vacate suspended reduction to PFC awarded at CO's NJP dated 950615.

950721:  NJP for violation of UCMJ, Article 86 (2 specs):
 Specification 1: Unauthorized absence 2130, 950701 through 0905, 950702.
Specification 2: Unauthorized absence from morning rehabilitation at 13 Area Gym on 0600-0715, 950705.
Violation of UCMJ, Article 134 (2 specs):
Specification 1: Break restriction 0700, 950702, by failing to report for sign-in with OOD.
Specification 2: Break restriction on 2130, 950701 through 0905, 950702.
Awarded forfeiture of $427 per month for 2 months, restriction and extra duties for 45 days, reduction to Pvt. Not appealed.
951013:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions and a continued pattern of misconduct.
951020:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
951023:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions and misconduct due to a pattern of misconduct. The factual basis for this recommendation was two nonjudicial punishments, and two 6105 entries.

951121:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to minor disciplinary infractions and a continued pattern of misconduct, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

960120:  GCMCA [Commanding General, I Marine Expeditionary Force] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

960123:  SJA review determined the case sufficient in law and fact.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 960205 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).

 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 award of nonjudicial punishment (NJP) 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. 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 18 Aug 95 until 30 Jan 97.

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; Article 92, failure to obey a lawful general order; Article 134, break restriction.
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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