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NAVY | DRB | 2004 Marine | MD04-00511
Original file (MD04-00511.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD04-00511

Applicant’s Request
The application for discharge review was received on 20040203. The Applicant requested the characterization of service received at the time of discharge be changed to honorable or general/under honorable conditions. The Applicant requested a personal appearance hearing before the board in the Washington National Capital Region. The Applicant did not list a representative on his DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary 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/Conduct triable by courts-martial (request for discharge for the good of the service), authority: MARCORSEPMAN Par. 6419.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


 Issues, as stated

Applicant’s issues, as stated on the application:

 1. “I have matured and wish to be an example to others. I recognize my mistakes and desire to be forgiven. By this upgrade of discharge, I can be a more positive influence to others and feel better about my service to the U.S Marine Corps and the United States .”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Character reference, undated
Character reference, dtd November 21, 2003
Character reference, dtd September 9, 2003
Unofficial Academic Transcript (10 pages)
Completion Certificate (Criminal Justice: Corrections) from Trident Technical College,
dtd August 13, 2003
Completion Certificate (Criminal Justice: Law enforcement) from Trident Technical
College, dtd May 5, 2003
Completion Certificate (Forensic Science) from Trident Technical College,
dtd August 13, 2003
Associate Degree in Public Service (Criminal Justice) from Trident Technical College,
dtd May 5, 2003
Criminal Record check (7 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR (J)               890216 - 890222  COG

 Period of Service Under Review :
Date of Enlistment: 890223               Date of Discharge: 920717

 Length of Service (years, months, days):

         Active: 03 04 25
         Inactive: None

 Age at Entry: 19                          Years Contracted: 6

 Education Level: 12                        AFQT: 88

 Highest Rank: LCpl                MOS: 2531, Field Radio Operator

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.4 (7)                       Conduct: 4.4 (7)

 Military Decorations: CAR

 Unit/Campaign/Service Awards: SASM (w/2 stars), NDSM, SSDR

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Conduct triable by courts-martial (request for discharge for the good of the service), authority: MARCORSEPMAN Par. 6419.

 Chronological Listing of Significant Service Events :

890901:  Counseled for deficiencies in performance and conduct. [Academically dropped from training.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

900522:  Counseled for deficiencies in performance and conduct. [Absent from appointed place of duty and disrespectful to an NCO.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

911212:  Counseled for deficiencies in performance and conduct. [Insubordination, disrespect toward SNCO.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

911226:  NJP for violation of UCMJ, Article 91: … disrespectful in language to SSgt …
Violation of UCMJ, Article 117: … did use provoking speeches and gestures …
Violation of UCMJ, Article 92: did … disobey a lawful order given to him by three SNCO ’ s …
Awd forf of $463.00 per month for 2 months, and 45 days restriction and extra duties. Forf of $463.00 per month for 1 month, and 45 days restriction and extra duties susp for 6 mos. Not appealed.
920212:  NJP for violation of UCMJ, Article 128: … did strike in the face, and verbally assault …
Awd forf of $463.00 per month for 2 months, and 45 days restriction and extra duties. Forf susp for 6 mos. Not appealed.
920511:  Charge Sheet for violation of UCMJ, Article 134 (2 specs):
 Specification 1: … did … possess one (1) AK-47 Automatic Assault Rifle which was not registered to him …
Specification 2: … did … possess a machine gun (a fully automatic AK-47 Assault Rifle) in violation of 18 United States Code Section 922.
Undated:         Applicant, having consulted with counsel certified under UCMJ Art 27b, requested discharge for the good of the service to escape trial by court- martial. In the request the Applicant noted his counsel had fully explained the elements of the offenses for which he was charged and 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 134: possession of an automatic weapon in violation of Title 26 USC Section 5861 and 18 USC Section 922.

920617:  SJA review determined the case sufficient in law and fact.


920618:  GCMCA [Commanding General, 1 st Marine Division (Rein)] determined that Applicant had no potential for further service, that separation in lieu of trial by court-martial was in the best interest of the service, and directed discharge under other than honorable conditions by reason of conduct triable by courts-martial.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

 Discussion

The Applicant was discharged on 19920717 under other than honorable conditions in lieu of trial by court-martial (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’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 is evident 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. Relief not warranted.

The Board found that the Applicant’s age, education level, and test scores qualified him for enlistment. While he may feel that his immaturity and youth were factors contributing to his actions, the record clearly reflects his disregard for the requirements of military discipline and demonstrated he was unfit for further service. The record is devoid of evidence the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

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 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL, 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 91, Insubordinate conduct ; Article 92, Failure to obey an order ; Article 117, Provoking speeches or gestures ; Article 128, Assault.

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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