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NAVY | DRB | 2004 Marine | MD04-00427
Original file (MD04-00427.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD04-00427

Applicant’s Request
The application for discharge review was received on 20040115. The Applicant requested the characterization of service received at the time of discharge be changed to honorable. The Applicant requests 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 20040817. 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 (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.3.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

 1. “To whom it may concern:
I am G_ W_ (Applicant) and I am seeking to have my discharge staus updated. I know I have some derragatory issues with my military record book, but I have changed and my life has changed in they years passing. I would like to go back to school and further my current occupation as a Mortgage Loan Officer. I would like to use the remainder of my G. I. Bill. I am a very active member of my community. I am a well known DeeJay and producer. I also do voiceovers for the #1 radio station in Phoenix. (Power 92 FM) I have changed my past by what I’m doing today! I would like to thank you for your time and consideration. Thank You!

G_ D W_ (Applicant)      (Signed)

December 5, 2003.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
“Discover-e” Certification
Applicant’s resume

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active:                            None                       HON
         Inactive: USMCR (J)               890710 - 891226  COG

 Period of Service Under Review :
Date of Enlistment: 891227               Date of Discharge: 940307

 Length of Service (years, months, days):

         Active: 04 02 11
         Inactive: None

 Age at Entry: 18                          Years Contracted: 6

 Education Level: 12                        AFQT: 50

 Highest Rank: LCpl (MOS: 6315, Aircraft Communications/Navigation Technician)

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (15)                      Conduct: 4.1 (15)

 Military Decorations: MeritM (x3), LtrApp, LtrRec

 Unit/Campaign/Service Awards: NDSM, SSDR

 Days of Unauthorized Absence: None

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

UNDER HONORABLE CONDITIONS (GENERAL) /Misconduct – Pattern of misconduct (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.3.

 Chronological Listing of Significant Service Events :

900627:  Counseled for deficiencies in performance and conduct. [Deficiencies of the UCMJ.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
900627:  NJP for violation of UCMJ, Article 80: Did … attempt to fraud … by trying to cash an altered check.
 Violation of UCMJ, Article 123: … wrongfully altered a check in the following figures $879.00.
Awd red to PFC, E-2, forf of $400.00 per month for 2 months, and 30 days restriction and extra duties. Not appealed.
930623:  Counseled for deficiencies in performance and conduct. [Writing checks without sufficient funds to cover them, and poor management of my financial affairs which has resulted in several letters of indebtedness.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
931101:  Counseled for deficiencies in performance and conduct. [Financial irresponsibility.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
931214:  NJP for violation of UCMJ, Article 86: … without authority, fail to go at the time prescribed to his appointed place of duty ...
 Violation of UCMJ, Article 134: … being indebted … in the sum of $2,305.00 for rent ...
Awd red to PFC, E-2, and 45 days and extra duties. Not appealed.
940124:  NJP for violation of UCMJ, Article 123a: … did … with the intent to defraud … wrongfully and unlawfully make … a certain check …
Awd red to Pvt, E-1. Not appealed.
940111:  Applicant notified of intended recommendation for separation from the service with a general (under honorable conditions) discharge by reason of misconduct due to a pattern of misconduct as evidenced by the Applicant’s “continued pattern of involvement with military authorities.”
940111:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
940111:  Commanding officer recommended discharge general (under honorable conditions) by reason of misconduct due to minor disciplinary infractions and a pattern of misconduct. The factual basis for this recommendation was the Applicant’s “continued pattern of involvement with military authorities.”

940114:  Applicant waived right to Administrative discharge board contingent on receiving a general under honorable conditions discharge.

940214:  SJA review determined the case sufficient in law and fact.

940215:  GCMCA [Commanding General, 3d 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 19940307 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. 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.

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. The Applicant’s service record is marred by award of non-judicial punishment (NJP) on three separate occasions substantiating his misconduct . It must be noted that most Marines serve honorably; thereby, earning honorable discharges. In fairness to those Marines, commanders and separation authorities are tasked to ensure the undeserving receive no higher characterization than is due. An upgrade to honorable would be inappropriate. Relief denied.

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. 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 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. At this time, the Applicant has not provided sufficient documentation for the Board to consider an upgrade.

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 80, Attempted to commit fraud ; Article 86, Unauthorized absence; Article 123, Forgery ; Article 123a, Making, drawing, or uttering check, draft, or order without sufficient funds; Article 134, Indebtedness.
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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