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NAVY | DRB | 2004 Marine | MD04-00062
Original file (MD04-00062.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD04-00062

Applicant’s Request
The application for discharge review was received on 20031008. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requested a personal appearance hearing before the board in the Washington National Capital Region. In the acknowledgement letter, the Applicant was informed the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing and advised to submit additional issues and supporting documentation. The Applicant did not list a representative on his DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040628. 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 am looking forward to coming to Washington DC to meet with the board. I appreciate the fact that there is a board and that you take time to hear different discharges and the people that have them. I have much I would like to write here, but I would rather see the board in person, so if they have any questions, I can answer them to my fullest ability. Thank you again, this means a lot to me, M_ I_”

Applicant marked the box "I HAVE LISTED ADDITIONAL ISSUES AS AN ATTACHMENT TO THIS APPLICATION." None were found.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214 (partial copy)
Special Additional Information section from DD Form 214
Medical Consults (22 pages), dtd June 14, 1983 through May 24, 1993
Undated, unsigned ltr from Applicant
Light Duty Chit, dtd Tuesday, December 07, 1999
SECOND ENDORSEMENT on President AdminDischBd ltr 1910 SJA/12 of 8 Jun 00
Clinical notes, undated
Article on Attention Deficit Disorders
Page from Applicant’s Rebuttal for Administrative Separation
Military Medical Record (18 pages)
Copy of DD Form 149 (Application for Correction of Military Record)
Applicant’s ltd, rcvd 20031205

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None                       HON
         Inactive: USMCR (J)               960708 - 970528  COG

 Period of Service Under Review :
Date of Enlistment: 970529               Date of Discharge: 000627

 Length of Service (years, months, days):

         Active: 03 00 29
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 63

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.9 (4)              Conduct: 3.6(4)

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, MUC

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 :

960708:  Applicant failed to reveal his significant past medical history during his Initial Enlistment Physical.
981201:  Counseled for deficiencies in performance and conduct. [Unauthorized, absence, failure to follow a lawful order, insubordination to a SNCO, disrespect to a SNCO, communicating a threat, failure to perform assign(ed) duties and failure to follow a written order.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

981214:  Eligible but not recommended for promotion to Cpl for the month(s) of Nov, Dec 1998 due to disciplinary problems and lack of leadership.

990125:  Counseled for deficiencies in performance and conduct. [… grabbing another Marine’s arm and using physical force to remove a candle from her hand. The candle was not (the Applicant’s) property.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990401:  NJP for violation of UCMJ, Article 134: indecent exposure.
 Awd forf of $260.00 per month for 1 month, 14 days restriction and
extra duties. Not appealed.
990930:  NJP for violation of UCMJ, Article 92 (2 specs):
 Specification 1: violated MCO 1700.22D by having liquor in his room.
Specification 2: violated lawful order given by Cpl M_ and MSgt H_ to input broadcast schedule.
Awd red to PFC/E-2, forf of $500.00 per month for 2 months, and 30 days CCU. Red and forf suspended for 6 mos. and awd 30 days restriction and
extra duties due to being found unfit for CCU. Not appealed.
000128:  SACO/DACO Applicant was evaluated and determined to be beyond the scope of unit level treatment.

000203:  Medical evaluation for alcohol abuse found the Applicant to be an alcohol abuser (DSM IV 305.00).

000203:  Applicant refused to participate in the Outpatient treatment program.

000210:  NJP for violation of UCMJ, Article 91 (2 specs):
 Specification 1: on or about 2130, 000116 Applicant was stopped for loud music and became disrespectful.
Specification 2: on or about 2144, 000124 Applicant was stopped for loud music and became disrespectful.
NJP for violation of UCMJ, Article 92 (2 specs):
Specification 1: Applicant was ordered by the SDO to report to the SgtMaj’s office in a squared away uniform, an order which he ignored.
Specification 2: violated ABO 11012.1 by allowing an overnight guest and not checking guest in with barracks #41998 DNCO.
 Awd red to PVT/E-1, forf of $502.00 per month for 2 months. Not appealed.
00(undated):     Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions as evidenced by continuous involvement with military authorities.
00(undated):     Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
000608:  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 general (under honorable conditions).

000612:  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 (the Applicant’s) continuous involvement with military authorities.

000619:  GCMCA [Commanding General, Marine Corps Air Station, Cherry Point] directed the Applicant's separation with a general (under honorable conditions) by reason of misconduct due to minor disciplinary infractions.

000821:  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 20000627 with a general (under 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 introduced no decisional issues for consideration by the Board. However, after a very careful review of the record and the documentation submitted by the Applicant, the Board discovered no impropriety or inequity and considers the Applicant’s discharge proper and equitable . A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a Marine. The record is devoid of any evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. The Applicant’s service record is marred by award of nonjudicial punishment (NJP) on three separate occasions and two negative page 11 counseling entries warnings . The Applicant’s summary of service clearly reflects his disobedience of the orders and directives that regulate good order and discipline in the naval service, and demonstrated he was unsuitable for further service. A discharge upgrade to honorable would be inappropriate. Relief denied.

Additionally, Marines who procure a fraudulent enlistment, reenlistment, induction, or period of active service will be processed for separation, normally, under other than honorable conditions. An enlistment, induction, or period of service is fraudulent when there has been deliberate material misrepresentation, including the omission or concealment of facts (as the applicant did by not revealing his prior enlistment medical history), which if known at the time would have reasonably been expected to preclude, postpone, or otherwise affect the Marine's eligibility for enlistment or induction.

T here 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, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct. At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty. Relief denied.
 
The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge. The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time. 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 [e.g., 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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