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USMC | DRB | 2003_Marine | MD03-00634
Original file (MD03-00634.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD03-00634

Applicant’s Request
The application for discharge review was received on 20030221. The Applicant requests the characterization of service received at the time of discharge be changed to honorable or general/under honorable conditions and the reason for the discharge be changed to Expiration of Term of Service. The Applicant requests a personal appearance hearing before the board in the Washington National Capital Region. The Applicant listed a civilian counsel the representative on the DD Form 293. Subsequent to the submission of Form 293 the Applicant changed civilian counsel.

Decision
A personal appearance review hearing was conducted in Washington, D.C. on 20040603. After a thorough review of available 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 and reason for discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/ Misconduct – Pattern of misconduct (admin discharge board required but waived), authority: MARCORSEPMAN Par. 6210.3.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Issues as submitted by W_ B_ C_, original civilian counsel, in written format with Form 293 were withdrawn by the Applicant and newly appointed counsel at the hearing. Post-service conduct was verbally submitted as the only issue at the time of the hearing, superseding all prior written issues.

Documentation
The service and medical records could not be obtained, but the following additional documentation, submitted by the Applicant, was considered:
Character reference from History Teacher, Southwest High School, undated (2)
Character reference, undated (2)
Applicant’s DD Form 214
Statement from Applicant, dated January 2, 2004
Twenty-five pages from Applicant’s service record
Character reference, General Manager, Bil-Den Glass, Inc, dated April 16, 2003 (2)
Character reference from Gunnery Sergeant, USMC, dated May 21, 2003
Character reference from Master Gunnery Sergeant, USMC, undated
Certificate of Good Conduct, dated November 12, 1987
Facsimile from W_ M_ H (3 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                840809 - 841112  COG

 Period of Service Under Review :
Date of Enlistment: 841113               Date of Discharge: 880411

 Length of Service (years, months, days):

         Active: 03 04 29
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: Unknown

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.5 (9)                       Conduct: 4.2 (9)

 Military Decorations: None

 Unit/Campaign/Service Awards: Letter of Appreciation, MM

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct-Pattern of misconduct (admin discharge board required but waived), authority: MARCORSEPMAN Par. 6210.3.

 Chronological Listing of Significant Service Events :

850417:  NJP for violation of UCMJ, Article 112A (2 specs):
 Specification: Wrongfully use marijuana on 1430, 850407.
Specification 2: Wrongfully distribute marijuana on 1600, 850407.
Awarded forfeiture of $162.00 per month for 1 month, restriction and extra duties for 14 days. Not appealed.
850729:  Counseled for deficiencies in performance and conduct. [Unsatisfactory judgment and integrity in an improper personal relationship which could adversely affect the discipline and morale of the command.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
860226:  NJP for violation of UCMJ, Article 121:
 Specification: Steal one (1) M125A1 Signal Illumination Ground “Pop-Up Flare” on 851216.
Awarded forfeiture of $173.00 per month for 1 month, restriction and extra duties for 14 days. Not appealed.
880113:  Counseled for deficiencies in performance and conduct. [Frequent involvement with civilian authorities in Raleigh, NC.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
880226:  NJP for violation of UCMJ, Article 86:
 Specification: Absent from appointed place of duty on 880214-880215, to wit: Guard shack.
Awarded forfeiture of $200.00 per month for 1 month. Not appealed.
880328:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
880328:  Applicant advised of 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.

880328:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct. The factual basis for this recommendation was your nonjudicial punishment of 850417, 860226, 880226, and your adverse page 11 entries of 850729 and 880113.

880330:  SJA review determined the case sufficient in law and fact.

880331:  GCMCA [Commanding General, 2d Marine Division, Fleet Marine Force, Camp Lejeune, NC] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

 All Chronological entries were extracted from supporting documents provided by the Applicant/counsel.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19880411 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).

The Applicant and civilian counsel presented one single issue during the personal appearance that the Applicant and counsel identified as superseding the issues submitted with DD Form 293.

 Issue 1: For the Applicant’s edification, outstanding post-service conduct can be considered, 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. In determining whether a case merits a change based on post-service conduct, the NDRB considers the length of time since discharge, the applicant's record of community service, employment, conduct, educational achievements, and family relationships. In reviewing the applicant’s post service conduct, the Board was impressed with his sobriety, contributions to society and dedication to his family. Nonetheless, the Board determined that the Applicant’s post-service conduct is insufficient to upgrade the characterization of discharge or narrative reason. Therefore, relief will not be granted at this time.

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and/or the reason for discharge if such change is warranted. There is no evidence of impropriety or inequity in the Applicant’s discharge. The Applicant’s misconduct is clearly documented. Therefore, relief is denied.

Additionally, the Board regrets to inform the applicant that the Certificate of Good Conduct presented to the board during his appearance was erroneously awarded. MCO P1070.12_, the Individual Records Administrative Manual, requires three years of continuous service without receipt of nonjudicial punishment for the award of the Good Conduct Medal. The Applicant’s certificate is dated 12 Nov 1987. However, the Applicant was awarded punishment at NJP on 17 April 1985 for violations of article 112a of the UCMJ. There is no three year period of service in the Applicant’s records that is free from nonjudicial punishment; therefore, the award was not considered by the Board as evidence of good conduct.




Pertinent Regulation/Law (at time of discharge)

 A. Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16C), Change 4, effective 29 Jul 87 until 26 Jun 89.

 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 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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