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NAVY | DRB | 2004 Marine | MD04-00178
Original file (MD04-00178.rtf) Auto-classification: Denied


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


ex-PVT, USMC
Docket No. MD04-00178

Applicant’s Request
The application for discharge review was received on 20031107. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions, entry level separation or uncharacterized and the reason for the discharge be changed to unable to complete training. The Applicant requests a documentary record 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 20040720. 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 and narrative reason 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 I C_ D_ C_ (Applicant), am writing the Board is because I know I made some mistakes while I was in the military and I would like to apologize. It seems like I have been apologizing for a whole year, the reason I say that is because I have not been able to find a good job anywhere. My family has deserted me because they told me that I was old enough to make my own decisions and the one that I made was a bad one, so now I am writing you to ask you to accept me back in your family. Like the Marines say “Once a Marine, Always a Marine,” Semper Fidelis. I feel like everyone is entitled to a second chance and if you can find it in your hearts to forgive me I swear it will not be taken for granted, it seems like the Marine corp has grown on me in a way that I can’t explain, but I know that if you accept my apology and up grade my Re-Entry Code to at least a 2 or 3 then I can show you that I can serve my country in a good way and not a bad one, because the way things are looking in my city, you have to look behind your back at all times, because more and more people are being killed for the smallest things, so if you could, would you please give me a second chance to serve my country. As of November 1 st I have to find somewhere else to stay because my family sat down and told me that I can’t continue to live with them because I can’t find a job or help pay the bills so I only have 16 days to find a place to live which will be on the streets.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR (J)               000907 - 010618  COG
Period of Service Under Review :
Date of Enlistment: 010619               Date of Discharge: 021023

 Length of Service (years, months, days):
         Active: 01 04 05         [Does not exclude lost time]
          Inactive: None
Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 41
Highest Rank: Pvt

 Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: 4.4 (4)                       Conduct: 4.1 (4)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM
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. 6210.3.

 Chronological Listing of Significant Service Events :

011106:  NJP for violation of UCMJ, Article 92:
 Specification: Violated Interim Liberty Regulations by wearing civilian attire when directed not to on 011106.
 Violation of UCMJ, Article 121:
 Specification: Stole merchandise from the AAFES Main Exchange on 011106.
 Awarded forfeiture of $521.00 per month for 1 month, restriction for 24 days. Not appealed.
011107:  Counseled for deficiencies in performance and conduct. [On 011106 at approximately 1730, Applicant changed into civilian clothes and went to the exchange on post. On 011106 at approximately 1800 while at the Power Zone Applicant was caught on video putting 3 CD’s into his waistband and exited the store without paying for them. While exiting Applicant was apprehended by MPI Investigator B_.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
011126:  NJP for violation of UCMJ, Article 117:
 Specification: Used provoking speech towards a fellow Marine on 011120.
 Violation of UCMJ, Article 128:
 Specification: Assaulted a fellow Marine on 011120.
Awarded forfeiture of $521.00 per month for 2 months, restriction and extra duties for 45 days. Restriction and extra duty suspended for 6 months. Not appealed.
011126:  Counseled for deficiencies in performance and conduct. [Misconduct for use of provoking speeches and gestures and assault.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
020425:  Vacate suspended restriction and extra duty awarded at NJP dated 011120.

 020426:  Counseled for deficiencies in performance and conduct. [Applicant received an NJP on 011026. On 020425 Applicant’s suspension was vacated.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
020906:  Summary Court-Martial.
          Charge I: violation of the UCMJ, Article 121 (2 specs):
         Specification 1: Steal a 27 inch Sharp Television on 020725, a value of $230.00, the property of LCpl.
          Specification 2: Steal an Apex DVD player on 020725, a value of less than $500.00 the property of PFC.
          Charge II: violation of the UCMJ, Article 130 (2 specs):
         Specification 1: Unlawfully enter a barracks room with the intent to commit a criminal offense on 020725, to wit: steal a 27 inch Sharp Television.
          Specification 2: Unlawfully enter a barracks room with the intent to commit a criminal offense on 020725, to wit: steal an Apex DVD player.
          Finding: to Charge I and II the specifications thereunder, guilty.
          Sentence: Forfeiture of 2/3 pay for 1 month, confinement for 29 days.
          CA action not found in service record.

020920:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
020920:  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.
021002:  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 NJP’s of 021106 for violations of Articles 92, 121; 021126 for violations of Article 117, 128; and your Summary Court Martial of 020906 for violations of Article 121 x 2 and 130 x 2. In addition, your 6105 entry of 010426.

021017:  SJA review determined the case sufficient in law and fact.
021017:  GCMCA [Commander, 1 st Marine Division (Rein)] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20021023 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. 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. T he Applicant’s service was marred by award of nonjudicial punishment (NJP) on two occasions and one summary court-martial. 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. His actions reflect a pattern of misconduct. No other narrative reason more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation. Relief denied.

 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. Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment. A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.

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, hardship, or for 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 P1900.16F), effective 01 Sep 2001 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 117, provoking speech; Article 121, larceny; Article 128, assault; and Article 130, housebreaking.
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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