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NAVY | DRB | 2004 Marine | MD04-00487
Original file (MD04-00487.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD04-00487

Applicant’s Request
The application for discharge review was received on 20040128. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge review. The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040922. 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 - Minor disciplinary infractions (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.2.



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1. “I would like my discharge upgraded to an Honorable for my education benefits. I realize I was not a perfect marine during my 3 ½ years.

I know my SRB will not show very good behavior as well. I did however try to turn myself around and even received a meritorious mast during operation restore hope, in Somalia, which I was not allowed to attend. I would greatly appreciate it if you could upgrade my discharge as I have hurt my back.

I have 3 herniated disks and a 47% disability in my back. I really need my benefits so I can go to school or a program to learn a skill to help me succeed in this troubled economy. I am 33 years old this year and have 2 kids. I would really like to help myself and secure their future. Thank you for your time. Please consider my request.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                         901215 - 910115  COG

 Period of Service Under Review :
Date of Enlistment: 910116               Date of Discharge: 940526

 Length of Service (years, months, days):

         Active: 03 04 11
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 72

 Highest Rank: LCpl (3043)

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.0 (9)              Conduct: 3.9 (9)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, MM

 Days of Unauthorized Absence: None

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

UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct-Minor disciplinary infractions (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.2.

 Chronological Listing of Significant Service Events :

920608:  Counseled for deficiencies in performance and conduct: (Attitude, work performance, physical fitness, personal appearance, and discourteous behavior). Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920611:  Counseled for deficiencies in performance and conduct. (Overweight). Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920629:  Counseled for deficiencies in performance and conduct (“my alcohol related incident, specifically, drinking in Tijuana , Mexico, returning to the U.S., rolling my car which in turn sent my friend to the hospital to get stitches, getting arrested by the San Diego Police Department and cited a DUI with a BAC of .08%. I was then picked up by 32 nd St Shore Patrol, which called my unit and had my SNCOIC pick me up and my involvement of a discreditable nature with military/civilian authorities”). Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

 920702:  NJP for violation of UCMJ, Article 91 (2 specs):
 Specification 1: Disrespect to a Staff NCO by saying “F_You” or words to that effect during the Bn hump on 920626.
Specification 2: Disrespect to a Staff NCO by saying “F_ you SSgt I am tired of your s_” during a counseling session on 920629.
Awarded: Red to E-2, Forf $440.00 pay per mo for 2 mos (Total forf $880.00), 30 das extra duties, and 30 das restr w/o susp fr du. Forf of 1 mo pay susp for 6 mos. Not appealed.

 921228:  Counseled this date concerning completion of Level II treatment program.
930513:  Counseled for deficiencies in performance and conduct: (failure to be at appointed place of duty on time). Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

930524:  Counseled for deficiencies in performance and conduct:(Failed to maintain his weight below set maximum standards after he was taken off weight control and put onto a maintenance program). Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940126:  Counseled for deficiencies in performance and conduct: (“Your financial irresponsibility and your lack of attention to paying your bills. Your lackadaisical attitude towards your daily work is very poor. Your job performance and attention to detail needs to be improved”). Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940316:  NJP for violation of UCMJ, Article 92:
 Specification: Failure to obey MCO 5110.16 by driving aboard MCB Camp Pendleton with a suspended drivers license.
         Award: Forf 7 das pay per mo for 1 mo (total $248.00), 14 das restr and 14 das extra du, to run concurrently. Forf of 7 das pay susp for 6 mos. Not appealed.
940420:  Applicant notified of intended recommendation for discharge under honorable conditions (general) by reason of misconduct due to minor disciplinary infractions.
940429:  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.

940429:  Commanding officer recommended discharge under honorable conditions (general) by reason of misconduct due to minor disciplinary infractions. The factual basis for this recommendation was your two nonjudicial punishments dated 920702 and 940313, and your four page 11 entries dated 920806, 930513, 940126 and 940126.

940505:  SJA review determined the case sufficient in law and fact.

940509:  GCMCA, Commanding General, 1 st Force Service Support Group, directed the Applicant's discharge under honorable conditions (general) by reason of misconduct due to minor disciplinary infractions.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19940526 under honorable conditions (general) for misconduct due to minor disciplinary infractions (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 Applicant would like his discharge upgraded to be eligible for “my education benefits.” 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 could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. As such, this Board presumed that Applicant’s discharge was regular in all respects. 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, 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 for more than 30 days.
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.
E.      

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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