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NAVY | DRB | 2004 Marine | MD04-00633
Original file (MD04-00633.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD04-00633

Applicant’s Request
The application for discharge review was received on 20040303. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance hearing before the Board in Tyler, TX . The Applicant was advised that all hearings are held in Washington, D.C. and that the Board first conducts a documentary review prior to any personal appearance hearing. The Applicant listed the Disabled American Veterans as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050228. 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

Applicant’s issues, as stated on the application:

1. “I think that my discharge is inequitable. The reason for this is, because before I was discharged I went through a courtmarshal. I was sentenced to six months in the brig loss of pay and reperamanded back to my unit. Before I could get out of the brig my staff NCO told me that I would be processed for discharge no matter the out come of my court marshal. I feel that I should have been given at least one more chance to prove myself.”

Additional issues submitted by Applicant’s counsel/representative (DISABLED AMERICAN VETERANS):

 2. “After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current Under Other Than Honorable Conditions discharge to Honorable.

The FSM served on active service from December 2, 1995 to April 9, 1999 at which time he was discharged by reason of Misconduct.

The FSM requests consideration be given to equitable relief, as he feels it was inappropriate for him to have received his separation before being allowed to show that he could be a good Marine, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174D.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the applicant.”
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)                940630 - 950619  COG

 Period of Service Under Review :
Date of Enlistment: 950620               Date of Discharge: 990409

 Length of Service (years, months, days):

         Active: 03 04 09 (Does not include lost time)
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 47

 Highest Rank: LCpl                         MOS: 3531

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (6)                       Conduct: 4.1 (6)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, MUC (w/*), LA, CC, RMB

 Days of Unauthorized Absence: 16

 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 :

960207:  NJP for violation of UCMJ, Article 86: UA from 1101, 960116 to 2100, 960201; violation of UCMJ, Article 90: Disobeyed Maj. S_’s order not to go out-of-bounds without written authorization; violation of UCMJ, Article 92: Violated stragglers orders by failing to report as directed.
 Awarded forfeiture of $400.00 per month for 2 months, and 29 days correctional custody ($100.00 for one month suspended for 6 months). Not appealed.
960207:  Counseled for deficiencies in performance and conduct. [UA and violating orders along with immaturity and lack of judgement.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970123:  Counseled for deficiencies in performance and conduct. [UA from 0600-0620, 961204, field day conducted on 961212, and 0430-0715, 961220.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
970501:  Counseled for deficiencies in performance and conduct. [Disrespect toward a superior commissioned officer and insubordinate conduct toward a NCO.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
980714:  NJP for violation of UCMJ, Article 91: Disrespectful to Cpl H_ on 980628; violation of UCMJ, Article 92: Having female in BEQ after hours on 980628; violation of UCMJ, Article 134: Communicated a threat to Cpl B_ on 980628.
 Awarded forfeiture of $519.00 per month for 2 months, restriction and extra duties for 45 days. Not appealed.
980824:  To pre-trial confinement.

981028:  Special Court-Martial.
Charge I. Violation of UCMJ, Article 81.
 Specification: Conspired with Pvt C_ to commit larceny of government property.
Charge II. Violation of UCMJ, Article 86.
Specification: UA on 980822.
Charge III. Violation of UCMJ, Article 121.
Specification: Stole computer equipment, property of the U.S. government of a value greater than $100.00 on 980821.
Findings. To Charge I and the specification thereunder, guilty; to Charge II and the specification thereunder, not guilty; to Charge III and the specification thereunder, guilty.
Sentence. Forfeiture of $300.00 per month for 6 months, confinement for 6 months, and reduction to Pvt.
CA action: 981118. Approved and executed.
981203:  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 two counseling entries, two NJPs, and one special court-martial.
981203:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
981203:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

990119:  From confinement, to duty.

 990211:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to a pattern of misconduct, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

990329:  SJA review determined the case sufficient in law and fact.

990330:  GCMCA, CG 1 st FSSG 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 19990409 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).

Issues 1 and 2. A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a Marine. T he Applicant’s service was marred by award of nonjudicial punishment (NJP) on two occasions for unauthorized absence, disobedience of the orders of a commissioned officer, disrespect to a NCO, disobedience of written orders, and communicating a threat. The Applicant was also the subject of a special court-martial for conspiracy and larceny. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable or under honorable (general) characterization of service. 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 Applicant’s discharge characterization accurately reflects his service to his country. Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question. No such inequity or impropriety 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 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 81, conspiracy; Article 86, unauthorized absence; Article 90, disobedience of the orders of a commissioned officer; Article 91, disrespect to a NCO; Article 92, disobey a lawful order; Article 121, larceny; and Article 134, communicate a threat.
C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

 E. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .

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 “ http://Boards.law.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:

                  Secretary of the Navy Council of Review Boards
                   Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023

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