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NAVY | DRB | 2004 Marine | MD04-00510
Original file (MD04-00510.rtf) Auto-classification: Denied


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


ex-LCpl, USMC
Docket No. MD04-00510

Applicant’s Request
The application for discharge review was received on 20040204. The Applicant requests 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 Oklahoma City. The Applicant obtained representation from the Veteran ’ s of Foreign Wars. In the acknowledgement letter, the Applicant was informed 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 record review prior to any personal appearance hearing.
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 – Commission of a serious offense (all other) admin discharge board required but waived, authority: MARCORSEPMAN Par. 6210.6.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues, as stated
Applicant’s issues, as stated on the application:

 1. “THE SITUATIONS I WAS FACING AT A YOUNG AGE WHILE DISCHARGED.”
2. “MY MATURIATY LEVEL AT THE TIME OF DISCHARGE.”
3. “TYPE OF DISCHARGE AFFECTING EMPLOYMENT OPPORTUNITIES NOW.”
Additional issues submitted by Applicant’s counsel/representative (VETERANS OF FOREIGN WARS):

 4. “ Applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning his application. His records were reviewed on July 14, 2004 and the following comments are hereby submitted.

 We ask for a careful and considerate review is completed on this applicant . We refer this case to the Board for their careful and compassionate consideration.”
Documentation
Applicant marked the box "WILL NOT BE SUBMITTED. PLEASE COMPLETE REVIEW ON AVIALIABLE SERVICE RECORDS." on the second page of his DD 293, but he did submit his DD Form 214.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR (J)               900608 - 910603  COG
Period of Service Under Review :
Date of Enlistment: 910604               Date of Discharge: 930122

 Length of Service (years, months, days):
         Active: 01 07 19
          Inactive: None
Age at Entry: 18                          Years Contracted: 6

Education Level: 12                        AFQT: 53
Highest Rank: LCpl                         MOS: 1371, Combat Engineer

 Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: 4.4 (3)                       Conduct: 4.4 (3)

 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-Commission of a serious offense (all other) admin discharge board required but waived, authority: MARCORSEPMAN Par. 6210.6.
Chronological Listing of Significant Service Events :

920910:  Counseled for deficiencies in performance and conduct. [Not recommended for promotion … due to lack of maturity.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920918:  Counseled for deficiencies in performance and conduct. [Failed to follow guidance from SNCO.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

921022:  Counseled for deficiencies in performance and conduct. [Not recommended for promotion … because of In Hands of Civil Authorities (IHCA).] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

921109:  Counseled for deficiencies in performance and conduct. [Failure to conform to the requirements of the law and military regulations.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

921215:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by the Applicant’s “ civilian conviction for unlawful sex with a minor. ”

921215:  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.
921215:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. The factual basis for this recommendation was the Applicant’s “ civilian conviction for unlawful sex with a minor. ”

921218:  NJP for violation of UCMJ, Article 86: … UA from appointed place of duty w/o auth …
Awd forf of $214.00 per month for 1 month, and 14 days restriction and extra duties for. Forf susp for 6 mos. Not appealed.
930107:  SJA review determined the case sufficient in law and fact.
930112:  GCMCA [Commander, 1 st Force Service Support Group] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19930122 under other than honorable conditions for misconduct due to the commission of a serious offense (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).
Issues 1 & 2: The Board found the Applicant’s age, education level, and test scores qualified him for enlistment. While he may feel his immaturity and youth was a factor that contributed to his actions, the record clearly reflects his disregard for the requirements of military discipline and demonstrated that he was unfit for further service. 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. Relief denied.

Issue 3: The Applicant states, his discharge is effecting employment opportunities now and he has not been able to maximize his potential as a civilian. The Applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity occurred during the Applicant’s enlistment. Additionally, 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 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. Relief not warranted.

Issue 4: As stated in the issue above, t he Applicant’s discharge characterization accurately reflects his service to his country. Normally, to permit relief, a procedural impropriety or inequity must have existed during the period of enlistment in question. No impropriety or inequity is evident during the Applicant’s enlistment. 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. Relief denied.


Pertinent Regulation/Law (at time of discharge)
A. Paragraph 6210, Misconduct 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.
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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