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USMC | DRB | 2003_Marine | MD03-00492
Original file (MD03-00492.rtf) Auto-classification: Denied


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

ex-PFC, USMCR
Docket No. MD03-00492

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 general/under honorable conditions. The Applicant requests a documentary record discharge review. The Applicant did not list any representative on the DD Form 293. Subsequent to the application, the Applicant obtained representation from the American Legion. The Applicant notified the Board that he wished to withdraw American Legion as counsel.

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: UNDER OTHER THAN 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 the Record to be in error or unjust in the following particulars :
My discharge was inequitable because it was based on erroneous entries to my record, while attending Military Occupation School at Good Fellow AFB. The discharge from my Command at Buckley AFB Colorado, was based on a recommendation from the CO at MCD Good Fellow AFB, there was no misconduct at my Command in Colorado .

 In support of this application I submit as evidence the following :
The Page 11 entries are erroneous for there are no signatures by the director or by the CO. The wording is also incorrect, written in the wrong form, written as “you are” instead of “I was” (Please see #6 Administrative Remarks (1070)G) The entries are also class matters and do not reflect activities at my Command 4 th FIIU, Buckley ANGB, Aurora CO.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
One page from Applicant’s service record
Applicant’s résumé (2)
Applicant’s DD Form 215
Applicant’s DD Form 214 for initial active duty training

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: None

 Period of Service Under Review :
Date of Enlistment: 990112               Date of Discharge: 001005

 Length of Service (years, months, days):

         Active: 01 00 11
         Inactive: 00 08 12

 Age at Entry: 26                          Years Contracted: 8

 Education Level: 16                        AFQT: 69

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.2 (4)              Conduct: 3.2 (4)

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 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. 6210.2.

 Chronological Listing of Significant Service Events :

990107:  Enlistment contract into the USMCR documents acknowledgement of the requirement to participate in 48 scheduled drills and not less than 14 days of annual training per year for 6 years upon completion of initial active duty training.

990521:  Counseled for deficiencies in performance and conduct. [Violation of Article 128 of the UCMJ when he assaulted a fellow Marine.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990913:  Counseled for deficiencies in performance and conduct. [On 990702 counseled on failing the written test for Block V and failing the retest for Block V which resulted in your being washed back. On 990712 counseled on sleeping in class and disrespect to a NCO. On 990722 counseled on being 45 minutes late for class and on security violation. On 990726 counseled on keeping his barracks room clean. On 990806 counseled on being UA.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

 991217:  NJP for violation of UCMJ, Article 92:
 Specification: Failure to obey order or regulation, to wit: unlawfully entered the room of a female in Barracks 257 on 990918.
Violation of UCMJ, Article 134:
Specification: Unlawful entry.
Awarded: Restriction and EMI for 14 days, reduction to Pvt. Reduction suspended for 6 months. Not appealed.
000128:  Counseled for excellent performance since your NJP held on 991217.

000211:  Counseled for deficiencies in performance and conduct. [My unsatisfactory participation in the Selected Marine Corps Reserve due to my missed drill on 6 Jan 00.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
000211:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.
000214:  Applicant advised of his rights and having elected not to consult 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 and the right to submit a statement.

000215:  Applicant submitted statement in rebuttal to proposed separation.

000304:  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 your service record pages 11 and 12 indicating involvement with military authorities which conduct is service discrediting.

000602:  SJA review determined the case sufficient in law and fact.

000602:  GCMCA [Commander, Marine Forces Reserve] 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 20001005 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 and E).

 Issue 1. The Applicant’s issue is without merit. The Applicant’s signature on page 11 counseling entries dated 19990521, 19990913, and 20000211 acknowledges that he was advised of the noted deficiencies. The absence of an appropriate official’s signature and the wording questioned by the Applicant does not invalidate the entries. The Board found that on each occasion there are deficiencies noted which are considered minor disciplinary infractions that could have been appropriately disciplined under UCMJ, Article 15. 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. The Applicant’s service was marred by award of nonjudicial punishment (NJP) on one occasion, adverse counseling entries on other occasions, and average conduct markings below the standard required for honorable service. 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 or under honorable characterization of service. The record of evidence does not demonstrate 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. 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 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 92, disobey a lawful order, Article 134, unlawful entry.
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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