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NAVY | DRB | 2004 Marine | MD04-00348
Original file (MD04-00348.rtf) Auto-classification: Denied


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


ex-Pvt, USMC
Docket No. MD04-00348

Applicant’s Request
The application for discharge review was received on 20031218. The Applicant requested the characterization of service received at the time of discharge be changed to honorable. The Applicant requested a documentary record review. The Applicant did not list a representative on his DD Form 293.

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 HONORABLE CONDITIONS (GENERAL) /Misconduct-Pattern of misconduct (with administrative discharge board), 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: “I was discharged with a service connected disability and I am limited to the work I can perform. I would like to go to college and earn a degree with the Montgomery GI Bill which I contributed to .”
Documentation
The Applicant did not submit any additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
          Inactive: USMCR (J)               901012 - 911008  COG
Period of Service Under Review :
Date of Enlistment: 911009               Date of Discharge: 931208

 Length of Service (years, months, days):
         Active: 02 01 21 (Accounts for UA.)
          Inactive: None
Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 70
Highest Rank: LCpl (0331)

 Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: 3.2 (8)                       Conduct: 3.3 (8)

 Military Decorations: MertM (x2)
Unit/Campaign/Service Awards: NDSM, SSDR

 Days of Unauthorized Absence: 931119-931121 (3 Days), 930426-930501 (6 Days)
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER HONORABLE CONDITIONS (GENERAL) /Misconduct-Pattern of misconduct (with administrative discharge board), authority: MARCORSEPMAN Par. 6210.3.

 Chronological Listing of Significant Service Events :

921106:  Counseled for deficiencies in performance and conduct. [Failure to pay debts.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.


930216:  Summary Court-Martial.
          Charge I: violation of the UCMJ, Article 86.
          Specification: … failed to go to … his appointed place of duty …
          Charge II: violation of the UCMJ, Article 123a (3 Specifications):
          Specification 1: … with the intent to defraud and for the procurement of lawful currency, articles or things of value … Total $1110.00 then knowing that he did not or would not have sufficient funds …
          Specification 2: … with the intent to defraud and for the procurement of lawful currency, articles or things of value … Total $100.00 then knowing that he did not or would not have sufficient funds …
         Specification 3: … with the intent to defraud and for the procurement of lawful currency, articles or things of value … Total $118.54 then knowing that he did not or would not have sufficient funds …
 Finding: to Charge I and the specification thereunder, not guilty. To Charge II, not guilty but guilty of LIO Art 134; to specification 1 under Charge II, not guilty but to the specification amended … guilty. To specification 2 under Charge II, not guilty but to the specification amended … guilty. To specification 3 under Charge II, not guilty.
         Sentence: 29 days CHL, forf of $608.00 per month for 1 month, and red to PFC/E-2.
          CA action 930217: Sentence approved and ordered executed. The Naval Brig, Pearl Harbor, HI is designated as the place of confinement.
930614:  NJP for violation of UCMJ, Article 86: Unauthorized absence 0800, 930426 – 0350, 930501 …
 Awd red to E-1, forf of $300.00 per month for 2 months, and 45 days restriction and extra duties. Not appealed.
930721:  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 “nonjudicial punishment of 14 June 1993 and a summary court-martial of 16 February 1993.”
930820:  Commander, 3d Marines (Rein) endorsement recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

930624:  Counseled for deficiencies in performance and conduct. [Pattern of misconduct.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.


930626:  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 “nonjudicial punishment of 14 June 1993 and a summary court-martial of 16 February 1993.”
930628:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
930923:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to a pattern of misconduct, that the misconduct warranted separation, and recommended a general discharge under honorable conditions.

931022:  SJA review determined the case sufficient in law and fact.
931105:  GCMCA [Commander, 1 st Marine Expeditionary Brigade] directed the Applicant's “separation with a general discharge (under honorable conditions) by reason of misconduct due to a pattern of misconduct.”

 931124:  Applicant UA (AWOL), 0730, 931119.
931124:  Applicant surrendered from UA (AWOL), 0730, 931122.
931124:  NJP for violation of UCMJ, Article 86 (2 specs):
 Specification 1: Unauthorized Absence 0730, 931119 – 0730, 931122 …
 Specification 2: Unauthorized Absence 0730, 931123 – 1500, 931123, failed to go to appointed place of duty.
 Awarded 5 days restriction. Not appealed.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19931208 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 Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

In the Applicant’s case, the Board discovered no impropriety or inequity; thereby, considering his discharge proper and equitable . 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 United States Marine Corps. The record is devoid of any evidence 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) and a Summary Court-Martial . The Applicant’s summary of service clearly reflects his disobedience of the orders and directives regulating good order and discipline in the naval service, while demonstrating he was unsuitable for further service. A discharge upgrade to honorable conditions would be inappropriate. Relief denied.

For the Applicant’s edification, DoD disability regulations do not preclude a disciplinary separation. Such separations normally supersede disability separations or retirements. Whenever a member is being processed through the PEB, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended. The PEB case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record.

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 P1900.16D), 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 123a, Making , drawing, or uttering check, draft, or order without sufficient funds .
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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