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NAVY | DRB | 2004 Marine | MD04-00483
Original file (MD04-00483.rtf) Auto-classification: Denied


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


ex-Pvt, USMC
Docket No. MD04-00483

Applicant’s Request
The application for discharge review was received on 20040128. The Applicant requested the characterization of service received at the time of discharge be changed to honorable and the reentry code be upgraded. 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 20040827. 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, authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues, as stated
The Applicant submitted no issues.


Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214 (2 Copies)
Applicant ’ s ltr, undated (unsigned)
Ltr of Appreciation, dtd 10 Mar 98 (unsigned)
 Ltr of Appreciation, dtd 17 Jun 98
 Certificate of Commendation, dtd 28 July 1999
 Acknowledgement of Rights
 Summary Court-Martial Appointment Order, dtd 8 Sep 99
Withdrawal and Dismissal of Charges
 Memorandum of Pretrial Agreement
 Acknowledgement of Rights and Waiver
Record of Trial
 Trial Summarization, dtd 21 Sept 99
 Report of Trial Results, dtd 21 Sept 99
 Prisoner Release Order
 Character reference, dtd April 7, 2001
Character reference, dtd 1-23-01
 Performance Evaluation
 Performance Evaluation

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active:                            None                       HON
         Inactive: USMCR (J)               961026 - 970921  COG
Period of Service Under Review :
Date of Enlistment: 970922               Date of Discharge: 991222

 Length of Service (years, months, days):
         Active: 02 01 15 (Includes lost time.)
          Inactive: None

 Age at Entry: 20                          Years Contracted: 4
Education Level: 12                        AFQT: 59

 Highest Rank: PFC (MOS: 6122, Aircraft Power Plant Mechanic J-52)
Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: *4.3                          Conduct: *3.9

Military Decorations: LtrAppr, CertCom
Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 990713-990907 (56)
         *Extracted from the Commanding Officer ’ s discharge recommendation letter.

 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 :

980123:  Counseled for deficiencies in performance and conduct. [Assaulting a fellow Marine.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980320:  Counseled for deficiencies in performance and conduct. [Violation of Article 86, Unauthorized absence from LEAD Program on (three separate occasions) of which (the Applicant) was found asleep in the rack.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
981021:  Counseled for deficiencies in performance and conduct. [Violation of Article 86, showing up late for a PFT.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
990412:  Counseled for deficiencies in performance and conduct. [Failure to maintain proper military bearing, disrespect to senior NCOs and having a lackadaisical attitude.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
990525:  Counseled for deficiencies in performance and conduct. [Failure to field day ... room when told to do so, also UA from work center for 15 minutes, frequent involvement with Military authorities and minor incidents prejudicial to good order and discipline.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
990625:  NJP for violation of UCMJ, Article 86: … did on or about 0600, 2 Jun 99, without authority absent himself from his work center until on or about 0645.
 Violation of UCMJ, Article 91: … was disrespectful in language …
Awd red to PVT, and 45 days restriction and extra duties. Not appealed.
991010:  Applicant, having consulted with counsel certified under UCMJ Art 27b, entered into a pretrial agreement to escape trial by special court- martial. In the request the Applicant noted that his counsel had fully explained the elements of the offenses for which he was charged and that he understood the elements of the offenses. He further certified a complete understanding of the negative consequences of his actions and that characterization of service would be under other honorable conditions. The Applicant admitted guilt to the following violations of the UCMJ, Article 86 (6 Specs): Unauthorized absence and Article 91 (4 specs): Insubordinate conduct .

991020:  Summary Court-Martial.
          Charge I: violation of the UCMJ, Article 86 (6 specs):
 Specification 1: … did … without authority fail to go to … his appointed place of duty …
Specification 2: … did … without authority fail to go to … his appointed place of duty …
Specification 3: … did … without authority fail to go to … his appointed place of duty …
Specification 4: … did … without authority fail to go to … his appointed place of duty …
Specification 5: … did … without authority fail to go to … his appointed place of duty …
Specification 6: … did … without authority fail to go to … his appointed place of duty …
         Charge II: violation of the UCMJ, Article 91 (4 specs):
 Specification 1: … having received a lawful order … an order, which it was his duty to obey, did … willfully disobey the same.
Specification 2: … was disrespectful in language toward … a noncommissioned officer, then known … to be a noncommissioned officer, who was in the execution of his office …
Specification 3: … did … assault … (a) noncommissioned officer, then known … to be a noncommissioned officer, who was then in the execution of his office …
Specification 4: … was disrespectful in language toward … a noncommissioned officer, then known … to be a noncommissioned officer, who was in the execution of his office …
Finding: to Charge I and all specification thereunder, guilty. To Charge II and all specification thereunder, guilty.
          Sentence: 30 days Confinement and Forfeiture of $640.00.
         CA action 991020: Sentence approved and ordered executed.
        
991118:  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 Applicants plea bargain arrangement pursuant to his Summary Court-Martial.
991118:  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 Applicants plea bargain arrangement pursuant to his Summary Court-Martial.
991122:  Applicant advised of rights and having consulted 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.
991215:  SJA review determined the case sufficient in law and fact.

 991217:  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 19991222 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).
The Applicant introduced no decisional issues for consideration by the Board.

 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. While he may feel he “always gave it a 110%,” his constant unauthorized absences and insubordinate conduct toward his NCOs illustrated the Applicant’s disobedience of the orders and directives regulating good order and discipline in the Marine Corps, while demonstrating he was unsuitable for further service. His service record is marred by six negative page eleven counseling entries, the awarding of non-judicial punishment (NJP) and a Summary Court-Martial for unauthorized absence and insubordinate conduct; thereby, substantiating his misconduct . It must be noted most Marines serve faithfully and honorably earning their honorable discharges. In fairness to those Marines, commanders and separation authorities are tasked to ensure the undeserving receive no higher a characterization than is due. An upgrade to honorable conditions would be inappropriate. 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 Board will not grant relief on the basis of this issue.
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, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that should have been provided to receive consideration for relief, based on post-service conduct. The Applicant’s evidence of post-service conduct was found not to mitigate the offenses for which he was discharged. 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 P1900.16E), 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; Article 91, Insubordinate conduct .
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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