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USMC | DRB | 2003_Marine | MD03-00672
Original file (MD03-00672.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD03-00672

Applicant’s Request
The application for discharge review was received on 20030304. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance discharge review before a traveling panel closest to Lexington, Ky. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington, D.C. area. The NDRB also advised that the Board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040303. 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. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

1. “The reason that I J_ J_ (Applicant), am applying for a discharge upgrade is currently I am applying to be a police officer in the State of Kentucky. When I was separated from the military, after serving three years four months and twenty eight days. I received an other Than honorable discharge. In order to obtain a police officer position I need an honorable or General under Honorable discharge. While in the military I made some unwise decisions. But at that time my maturity level wasn’t were it should have been. Now I am married with a child on the way, and trying to make something good out of myself and my life. I’ve always wanted to become a cop and I hope me serving in the military doesn’t stand in the way. The decisions I made then should not determine how I live the rest of my life.”

 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: None
         Inactive: None

 Period of Service Under Review :
Date of Enlistment: 970910               Date of Discharge: 010207

 Length of Service (years, months, days):

         Active: 03 04 28         Does not exclude lost time
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 31

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: NMF*                          Conduct: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, Certificate of Appreciation

 Days of Unauthorized Absence: 41

*No Marks Found in the service record

 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 :

980623:  Counseled for deficiencies in performance and conduct. [Your lack of discipline, lack of effort, and not following orders that are given by superiors.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
990803:  NJP for violation of UCMJ, Article 92 (2 specs):
 Specification 1: Underage drinking on 0235, 990705.
Specification 2: Underage drinking on 0135, 990724.
Awarded forfeiture of $537.00 (suspended for 6 months), restriction and extra duties for 45 days, reduction to PFC. Not appealed.
001027:  NJP for violation of UCMJ, Article 86 (2 specs):
 Specification 1: Unauthorized absence.
 Specification 2: Unauthorized absence.
 Violation of UCMJ, Article 92:
 Specification: Failure to obey a lawful order.
Awarded forfeiture of $667.00 per month for 1 month, restriction and extra duties for 45 days. Forfeiture suspended for 6 months. Not appealed.
001221:  Counseled for deficiencies in performance and conduct. [Your violation of Articles 86 and 92 of the UCMJ which resulted in Company level office hours for failing to report for ADNCO on time, not showing up to the rifle range which caused you to be dropped and not getting a key made for your BEQ room when you were told.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
001227:  NJP for violation of UCMJ, Article 85:
 Specification: Absent in desertion from 0730, 001102 to 0830, 001212 (40 days/surrendered).
Violation of UCMJ, Article 92:
Specification: Fail to obey lawful order issued by Major, to wit: Paragraph 5, restriction and EPD papers, dated 001027 by wrongfully failing to sign in for his restriction muster on 39 occasions from 001102 to 001210.
Violation of UCMJ, Article 112A:
Specification: Wrongfully possess steroids on 1200, 001101.
Awarded reduction to PFC. No indication of appeal.
010110:  NJP for violation of UCMJ, Article 92:
 Specification: Fail to obey lawful order issued by Major on 2200-2400, 010103, to wit: wrongfully consuming alcoholic beverages.
Awarded reduction to Pvt. Not appealed.
010207:  DD Form 214: Applicant discharged under other than honorable conditions by reason of misconduct due to a pattern of misconduct, authority: MARCORSEPMAN Par. 6210.3.

Applicant’s discharge package is missing from service record

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010207 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).

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 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, to enhance employment opportunities, or for 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 should have been 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.

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 86, unauthorized absence; Article 92, disobey a lawful order; and Article 112a, possession of illegal drugs.
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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