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USMC | DRB | 2003_Marine | MD03-00491
Original file (MD03-00491.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD03-00491

Applicant’s Request
The application for discharge review was received on 20030130. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests 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 20031229. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.2.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“1. I believe my discharge should be upgraded to Honorable, because of couple of mistakes that I made I made mistakes and paid for them I should not have to pay for the rest of my life for them. I have become a honorable citizen since then, I am currently in the Army Reserve. I am also a certified peace officer. Therefore I should be able to upgraded to Honorable Discharge. My Reenlistment Code should Also be change if possible. I believe I have done my time and should be given another opportunity.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                930316 - 930322  COG

 Period of Service Under Review :
Date of Enlistment: 930323               Date of Discharge: 970106

 Length of Service (years, months, days):

         Active: 03 09 14
         Inactive: None

 Age at Entry: 19                          Years Contracted: 6

Education Level: 12                        AFQT: 72

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (8)              Conduct: 4.1 (8)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, Rifle Marksman Badge

Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.2.

 Chronological Listing of Significant Service Events :

941228:  Counseled for deficiencies in performance and conduct. [Habitual tardiness to division formation, to include not reporting to duty.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950210:  Counseled for deficiencies in performance and conduct. [Continuous incidents of domestic dispute with your dependent wife. You are directed to attend classes recommended by Family Services. The classes are mandatory. Conduct of this nature will not be tolerated.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950223:  Counseled for deficiencies in performance and conduct. [Failure to be at your appointed place of duty and for being UA from 0500 to 0740 on 950222.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950309:  NJP for violation of UCMJ, Article 86: Unauthorized absence from his place of duty at which he was required to be, to wit: 1300 sick call, located at MALS-16, MCAS Tustin, and did remain so absent until he returned to his work center on or about 0700, 950228; violation of UCMJ, Article 91: Disobeyed a lawful order issued by Sergeant R_ W. B_ to report to sick call at 1300, an order which it was his duty to obey, did on or about 950227, fail to obey the same by wrongfully securing himself for the remainder of the day and not reporting to sick call.
         Award: 30 days extra duty to run concurrently, reduction to E-2. No indication of appeal in the record.

950727:  NJP for violation of UCMJ, Article 128: Did at 8641 ½ Trabuco, MCAS EL Toro, Santa Ana, CA 92709 on or about 2100, 950506, unlawfully assaulted G_ C_ by grabbing her face and forcing her to look at him; violation of UCMJ, Article 128: Did at 8641 ½ Trabuco, MCAS EL Toro, Santa Ana, CA 92709 on or about 2100, 950506, unlawfully assaulted G_ C_ by picking her up by the neck and throwing her on the bed and later picking her up by the neck and throwing her on the sofa; violation of UCMJ, Article 134: At 8641 ½ Trabuco, MCAS EL Toro, Santa Ana, CA 92709 on or about 2100, 950506, was disorderly which conduct was of a nature to bring discredit upon the Armed Forces.
         Award: Forfeiture of $200.00 pay per month for 2 months (suspended for 6 months), 14 days extra duty for 2 hours per day after normal working hours, reduction to E-1. No indication of appeal in the record.

950920:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.

950927:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

951218:  NJP imposed and suspended on 950727 for a period of 6 months is hereby vacated and the punishment is ordered executed.

960106:  Counseled for deficiencies in performance and conduct. [Disobeying orders by not maintaining your base housing IAW Sta0 11102.2H]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

 960517:  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, that the misconduct warranted separation, and recommended discharge under honorable conditions (general).

960827:  Commanding Officer recommended discharge under honorable conditions (general) by reason of misconduct due to minor disciplinary infractions. The factual basis for this recommendation was two non-judicial punishments for unauthorized absence, unlawful assault, disorderly conduct, three page 11 entries for unauthorized absences, and domestic disputes with dependent wife.

960917:  SJA review determined the case sufficient in law and fact.

960917:  GCMCA [Commander, Marine Force Reserve] directed the Applicant's discharge under honorable conditions (general) by reason of misconduct due to minor disciplinary infractions.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19970106 under honorable conditions (general) 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 and E).

Issue 1. 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 occurred 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. 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, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that may be provided to receive consideration for relief, based on post-service conduct. The Applicant’s evidence of post-service conduct was found not to mitigate the offenses for which he was discharged. Relief not warranted.

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 Naval Service or any other branch of the Armed Forces. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.

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 95until 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 91, disobedience to a SNCO; Article 128, assault; and Article 134, disorderly conduct.
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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