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NAVY | DRB | 2004 Marine | MD04-00304
Original file (MD04-00304.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD04-00304

Applicant’s Request
The application for discharge review was received on 20031205. The Applicant requested 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 Charlotte, NC. 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 DC 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 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 three to two 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:

 Issue 1: “Dear Naval Council of Personal Boards,

I am sending this application for a discharge review in the hopes of re-entering the military on a reserve basis and serving my country. Since my discharge in 1997 I have come to realize my flaws were not my inability to understand, but my age and self-given situation.

Like other Marines I was married directly out of boot camp; I had no idea what the responsibilities of a Marine or a husband entailed and got in over my head. I was unable to separate the fine line of family and service and it shaped what was left of my military career into a whirlwind of chaos.

As you check my military records you will see that all issues leading to my discharge were due to my youth and lack of knowledge of worldly affairs. As well as being a Marine I was also trying to balance a family life, three other jobs and poor guidance by my chief NCO. When I approached the NCO in charge with my dilemma he gave me the advice to ask for an administrative discharge, I was told that it was the only possible way to properly serve my unit due to the fact that I was taking up a position that others were trying to enter. After speaking with a Chaplain, who did not give me any advice or guidance, I took the advice of the leading NCO and requested an administrative discharge on the grounds of family problems. I was under the understanding that once these problems were taken care of I would he able to re-enter the service of my country. I have come to find out that I was wrong.

Upon the day of my discharge I was given an Other Than Honorable Discharge instead of the General under Honorable Conditions discharge that I was promised. When I protested I was told that I had no other choice and had to accept, I had neither council nor advice from any officials involved in the matter at hand. I signed due to my lack of knowledge of the situation and misguidance of those in charge; I have come to learn that no guidance is worse then bad guidance.

Since then several years have passed and I have come to believe that what I needed was proper guidance and a couple years of maturity. I have since then come to accomplish many successes with my personal life, career and many levels of maturity. My career over the past five years as a sales manager and network designer has brought me the maturity and leadership that I lacked earlier in my life. My college life has brought me the work ethic and stability that was needed earlier in my life and God has brought me the guidance and confidence to achieve anything I put my mind to.

I want to be able to provide the guidance that I once needed and be able to finish the military career I started earlier in life. I have attached, along with this explanation, letters of recommendation given to my by my former and current employers. My hopes are to rejoin the military on reserve status and eventually become a Chaplain when I complete seminary in the near future .

 I thank you in advance for taking the time to review this matter and considering the upgrade of my current discharge.


Respectfully,

 P_ J R_ (Applicant) ”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s resume (2 pages)
Job reference, dtd February 13, 2002
Job reference, dtd May 8, 2003
Job reference, dtd September 16, 2003
Job reference, dtd February 4, 2003

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None                       HON
         Inactive: USMCR (J)               950111 - 951105  COG

 Period of Service Under Review :
Date of Enlistment: 951106               Date of Discharge: 970718

 Length of Service (years, months, days):

         Active: 01 08 13
         Inactive: None

 Age at Entry: 19                          Years Contracted: 5

 Education Level: 12                        AFQT: 66

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.2 (6)                       Conduct: 3.7 (6)

 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 :

961106:  Counseled for deficiencies in performance and conduct. [Unauthorized absence from appointed place of duty and repeated failure of personnel inspections.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
970108:  Counseled for deficiencies in performance and conduct. [Unauthorized absence form normal place of duty.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
970311:  Counseled for deficiencies in performance and conduct. [Substandard conduct and performance.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
970519:  Counseled for deficiencies in performance and conduct. [Suspension of security access due to personal and professional problems.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
970522:  NJP for violation of UCMJ, Article 86: Absent without leave.
 Awd red to PFC/E-2, forf of $100.00 per month for 2 months (susp for 6 mos.). Not appealed.
970529:  Counseled for deficiencies in performance and conduct. [Unauthorized absence from appointed place of duty.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. (NJP punishment vacated.)
970623:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by the Applicant’s discreditable involvement with authorities.
970623:  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.

970623:  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 the Applicant’s discreditable involvement with authorities.

970708:  SJA review determined the case sufficient in law and fact.

970708:  GCMCA [Commanding General, 2d Marine Aircraft Wing] 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 19970718 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 Board found the Applicant’s age, education level, and test scores qualified him for enlistment. While he may feel his immaturity and youth were factors that contributed to his actions, the record clearly reflects his disregard for the requirements of military discipline while demonstrating that he was unfit for further service. The record is devoid of evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. The record does not support the Applicant’s contention that he was denied access to legal council, to the contrary, the record shows the Applicant knowingly waived this right even though he knew it was in his best interest to consult with council prior to exercising or waiving his said rights. Additionally, the record shows that the Applicant was aware that the Commanding General would make the final decision as to the characterization of his discharge, which could have been “Under Other Than Honorable Conditions” even though his Commanding Officer recommended a General discharge. Relief denied.

Concerning the Applicant’s desire to reenlist in the Reserves, 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 granted during the processing of a formal application for enlistment through a recruiter.

There 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. E vidence 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.
 
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 31 Aug 01.

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.
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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