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NAVY | DRB | 2004 Marine | MD04-00546
Original file (MD04-00546.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD04-00546

Applicant’s Request
The application for discharge review was received on 20040211. 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 20041001. 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. 6210.2.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

 1. “I was pointed out as a martor for my Batt. I was found not guilty in a court martial and still harassed and pushed out of the military. I have no idea of any benefits to me by the marine corps there were other marines given high discharge cause of drugs smuggling robbery etc. I take responsibility for my 3 U.A which consatutes a discharge if wanted by staff. I was unfairly treated from beginning to end of marine core enlistment. I have had severe injury to my knee and have no record of this since they were removed when I graduated boot camp. I’m not saying it was completely innocent but I was by far treated fairly. I ask that even with information available by the review board they will see without a doubt what I am talking about. This is the second time writing a DD 293 form and sending it. I thank the review board personnell there time in reviewing material at hand.
(I served more than 3 years and no benefits. My discharge was both unfair and unmarine like.)
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)                         970629 - 950124  COG

 Period of Service Under Review :
Date of Enlistment: 950125               Date of Discharge: 980410

 Length of Service (years, months, days):

         Active: 03 02 15
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

Education Level: 12                        AFQT: NMF*

 Highest Rank: LCpl                         MOS : 3531
Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (4)                       Conduct: 3.9 (4)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR

 Days of Unauthorized Absence: None

*NMF – No marks found in record

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.2.

 Chronological Listing of Significant Service Events :

970518:  Counseled for not being recommended for promotion due to poor performance and poor attitude.

970530:  NJP for violation of UCMJ, Article 86: UA from appointed place of duty.
         Award: Forfeiture of $553 per month for 1 month(s), restriction and extra duty for 14 days. Forf sup 4 mos. Not appealed.

970811:  Applicant placed on weight control.

971124:  Summary Court Martial. Charge I: Violation of UCMJ Article 86, unauthorized absence, 3 specifications. Charge II: Violation of UCMJ Article 92, violation of a lawful order, 5 specifications.

         Charge I:        Plead: G, Finding: G
          Spec 1: Plead: G, Finding: G
                            Spec 2: Plead: G, Finding: G
                           Spec 3: Plead: G, Finding: NG

         Charge II:       Plead: G, Finding: G
          Spec 1: Plead: G, Finding: G
                            Spec 2: Plead: G, Finding: G
                           Spec 3: Plead: G, Finding: G
          Spec 4: Plead: G, Finding: G
                            Spec 5: Plead: G, Finding: G

         Sentence: Red to Pvt, Forf $600.00 pay for 1mo. Rest 60 das.
971218:  Counseled for deficiencies in performance and conduct. [Violations of UCMJ Arts 86, 92, 134] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

 980105:  NJP for violation of UCMJ, Article 86: Late for battalion restriction musters to wit: on 27 Dec 97 45 minutes late, 28 Dec 92 10 minutes late.
 Awarded forfeiture of $200.00 per month for 1 months, restriction and extra duties for 12 days. Not appealed.
980123:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions as evidenced by your frequent involvement of a discreditable nature with military authorities.
980123:          Applicant advised of rights and having elected not to consult 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.

980129:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.

980226:  Counseled for deficiencies in performance and conduct. [Failure of PFT (sit-ups and pull-ups)] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980327:  SJA review determined the case sufficient in law and fact.

980403:  CG I MEF directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19980410 under other than honorable conditions 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. When the service of a member of the U.S. Marine Corps has been honest and faithful, it is appropriate to characterize that service as honorable. An Under Other Than Honorable Conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. The Applicant’s service was marred by two nonjudicial punishment proceedings and a summary court martial for nine violations of Articles 86 and 92 of the UCMJ. The Applicant was also counseled for poor performance and attitude, physical fitness test failure and his placement on weight control. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Marine Corps and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

The Applicant contends, “I was by far [not] treated fairly.” After considering the Applicant’s statement and the evidence of record, the Board found that there is no evidence of impropriety or inequity in the Applicant’s nonjudicial punishment, court martial or subsequent administrative separation. There is no evidence the Applicant appealed his nonjudicial punishments. The Applicant was provided the opportunity to present his case before an administrative board, but waived that right. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

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.

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. 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 2001.

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 92, failure to obey an order or regulation.
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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