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NAVY | DRB | 2004 Marine | MD04-00185
Original file (MD04-00185.rtf) Auto-classification: Denied


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


ex-PFC, USMC
Docket No. MD04-00185

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. The Applicant requests a documentary record review. The Applicant did not list any representative on the DD Form 293. Subsequent to the application, the Applicant obtained representation by American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040812. 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 – Commission of a serious offense (all other) administrative discharge board required but waived , authority: MARCORSEPMAN Par. 6210.6.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues, as stated
Applicant’s issues, as stated on the application:

 Issue 1: “Was told to me that in 6 months I could upgrade one level of discharge. That is what I am requesting.”
Additional issues submitted by Applicant’s counsel/representative (AMERICAN LEGION):
Issue 2: “Equity Issue: Based on our review of evidentiary record and on behalf of this former member, we request that the Board consider provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.
_________________________________________________________________
In accordance with 32 C.F.R., section 724.166 and SECNAVINST 5420.174C, enclosure (1), paragraph 1.16, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue and following statement in supplement to this Applicant’s petition.

Review of the service record reveals that this former member earned the RSB, PMB, LOA and SSDR. The basis for his discharge processing was UA from 850918 to 930405. Following due process notifications, he was discharged Under Other Than Honorable Conditions due to misconduct - commission of a serious offense as authorized by MARCORSEPMAN, Par. 6210.6.
Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because he was told that it would be 6 months after his discharge. He has not submitted any additional documentation for the Board’s consideration.
The American Legion’s express purpose in providing this statement, and any other submittals or evidence filed, is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised. To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 U.S.C., section 1553, and set forth in 32 C.F.R., part 724 and SECNAVINST 5420.174C, enclosure (1).

This case is now respectfully submitted for deliberation and disposition .”


Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’ s DD Form 149, dtd Sep 17, 2003
 Applicant’ s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None                       HON
          Inactive: USMCR (J)               830228 - 830427  COG
Period of Service Under Review :
Date of Enlistment: 830428               Date of Discharge: 930514

 Length of Service (years, months, days):
         Active: 02 06 01
          Inactive: None
Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 66
Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.2 (8)                       Conduct: 3.7 (9)
Military Decorations: LtrApp

 Unit/Campaign/Service Awards: SSDR
Days of Unauthorized Absence: 850918 - 930404

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Commission of a serious offense (all other) administrative discharge board required but waived , authority: MARCORSEPMAN Par. 6210.6.

 Chronological Listing of Significant Service Events :

850325:  NJP for violation of UCMJ, Article 86: … did, w/o auth, abs himself fr his appt pl of du …
 Awd red to PFC, E-2, forf of $200.00 per month for 2 months, and 14 days extra duties. Red to PFC, E-2 susp for 6 mos. Not appealed.
850826:  NJP for violation of UCMJ, Article 108 (2 specs):
 Specification 1: … did, through neglect damage, by breaking the windshield of a USMC M927 truck …
 Specification 2: … did, through neglect damage, the rear of a USMC M927 truck …
Awd red to grade E-1, forfeiture of $100.00 per month for 2 months, and 15 days extra duties. Red to Pvt/E-1 susp for 6 mos. Not appealed.
850918:  Applicant to UA (AWOL).

 851104:  Applicant declared a deserter and dropped from the rolls.
930407:  Applicant from UA (AWOL), returned to government control after being apprehended.
930408:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by (the Applicant’s) “unauthorized absence status from 18 September 1985 until 5 April 1993.”
930413:  Applicant advised of rights and having elected not to consult 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.
930415:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. The factual basis for this recommendation was the Applicant’s “unauthorized absence status from 18 September 1985 until 5 April 1993.”

930510:  GCMCA [Commanding General, Marine Corps Base, Camp Lejeune] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19930514 under other than honorable conditions for misconduct due to the commission of a serious offense (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).
Issues 1 & 2: Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the Applicant’s enlistment. A service characterization of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a member of the U. S. Marine Corps. The Applicant’s record is devoid of any evidence that the he 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 non-judicial punishment (NJP) on two separate occasions and for his unauthorized absence from September 1985 to April 1993, which ended only after he was apprehended and returned to government authorities . The Applicant’s summary of service clearly reflects his disobedience of the orders and directives regulating good order and discipline in the naval service; thereby, demonstrating he was unsuitable for further service. An upgrade to general (under honorable conditions) would be inappropriate. Relief denied.
 
 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 any 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 The Marine Corps Separation and Retirement Manual, ( MCO P1900.16D), effective 27 Jun 89 until 17 Aug 95.

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 108, Neglect damage of military property .
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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