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NAVY | DRB | 2004 Marine | MD04-00752
Original file (MD04-00752.rtf) Auto-classification: Denied


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


ex-Pvt, USMC
Docket No. MD04-00752

Applicant’s Request
The application for discharge review was received on 20040330. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. 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 20041008. 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 understand I was separated from the Marine Corps with good reason, I am now trying to get back in the Milatry to finish what I started.
When I joined the Military originally, I was 17 yrs old. I was young & dumb. I have now been out of the military going on 2 years. I have gotten out in the world & seene that I was running from the best thing in my life. The Miltary offered-disapline, integraty, schooling benefits, housing, etc. I took all of that for granted. I now feel that I am a bit smarter & wiser to things in life. I would really like to try & finish what I started, by rejoining the military, under a new branch, new contract & finish what I started.
I would greatly appreciate the chance to finish the experience I started in the military. I am not a quiter. I have never been a quiter & I don’t intend to start quiting now.
I would like to say also the fact of when I joined the Marine Coprs, I was young & arrogant, & did not really understand what exactly I was getting into when I joined the Marines. I joined what I feel was to much for me at such a young age. I do now feel that I can complete a full tour in the military, just in a different branch. I would greatly appreciate a chance to complete my military experience in a different branch. I thank you for your time & hope will give me the chance I so desprently want. Once again, I thank you for your time and hope to hear good news from you soon.”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
No additional documentation submitted

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
          Inactive: USMCR(J)                010228 - 010312  COG
Period of Service Under Review :
Date of Enlistment: 010313               Date of Discharge: 020703

 Length of Service (years, months, days):
         Active: 01 03 20
          Inactive: None
Age at Entry: 17                          Years Contracted: 4

Education Level: 10      /GED              AFQT: 36
Highest Rank: LCPL                MOS: 3531

 Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: 3.6 (5)                       Conduct: 3.7 (5)

 Military Decorations: None
Unit/Campaign/Service Awards: NDSM, RMB
Days of Unauthorized Absence: 2

 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 :

010223:  Initial enlistment contract documents admission of pre-service marijuana experimentation. Enlistment waiver was granted. Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

020220:  NJP for violation of UCMJ, Article 86 (1 Spec), Article 87 (1 Spec).
 Viol Art 86 Spec 1: UA, 0730, 020204 to 1500, 020206, from Supt Co, 1 st CEB, 1 MARDIV, CamPen, CA.
 Viol Art 87 Spec 1: At CamPen, 020204, through design, missed movement of Supt Co, 1 st CEB.:
Awarded: forfeiture of $283.00 per month for 1 month (Total forf $283.00), 14 days restriction and 14 days extra duties to run cincurrently. Not appealed.
020220:  Counseled for deficiencies in performance and conduct. [20020220: Received NJP for being UA and missing movement on February 4, 2002.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
020404:  NJP for violation of UCMJ, Article 86 (1 Spec), Article 134 (1 Spec), Article 108 (1 Spec).
 Viol Art 86, Spec 1: UA, 0700, 020302 – 0730, 020312, from Supt Co, 1 st CEB, 1 MarDiv, CamPen, CA.
 Viol Art 134, Spec 1: At CamPen, 0700, 020302, broke restriction.
 Viol Art 108, Sepc 1: At CamPen, 020327, did damage by breaking into a secretary, military property of the United States.
Awarded: Reduction to E-2, forf of $619.00 for 2 months (Total forf $1238.00), 45 days restriction . Forf of $619.00 pay per month for 1 month, restriction for 20 days, suspended for 6 months, unless sooner vacated, the suspended punishment will be remitted without further action (Total forf $619.00). Not appealed.
020408:  Counseled for deficiencies in performance and conduct. [NJP on 20020404 for violation of articles 86, 108, 134, and 121.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
020514:  NJP for violation of UCMJ, Article 134 (3 specs):
 Spec 1: At CamPen, 14 Apr 02, broke restriction.
 Spec 2: At CamPen, 20 Apr 02, broke restriction.
Spec 3: At CamPen, 28 Apr 02, broke restriction.
 Awarded: forfeiture of ½ a months pay $511.00 for 1 month (total forf $511.00), reduction to E-1/PVT, and 10 days restriction. Forfeiture of ½ months pay $511.00 for 1 month (total $511.00), is suspended for a period of 6 months unless sooner vacated, the forfeiture will be remitted without further action. Not appealed.



 020515:  Counseled for deficiencies in performance and conduct. [Pattern of misconduct: As noted recently when you were given Battalion NJP on 14 May, 2002 for failing to make it to your Battalion restriction sign in’s on time on 14, 20, and 28 April 2002.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
020520:  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 three nonjudicial punishments and two page –11 entries.
020520:  Applicant advised of rights and having elected not to consult 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.
020613:  NAVDRUGLAB San Diego, CA reported Applicant’s urine sample, received 020607, tested positive for THC.
         
020614:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and illegal drug use. The factual basis for this recommendation was: “On 20 February 02, Lance Corporal Jones received a page-11 entry for his Company level NJP, which was held on the same day for Violation of the UCMJ, Article 87 and 86. On 8 April 2002, Private First Class Jones received a page –11 entry for Battalion level NJP, which was held on 4 April 2002 for Violation of UCMJ, Article 108, 86, and 134. On 14 May 2002, Private Jones was the subject of Battalion level NJP for Violation of the UCMJ, Article 86. Private Jones recently participated in the Battalion’s Urinalysis Program; his results came back positive for drug usage on 14 June 2002: (THC) marijuana. He is pending NJP.”
020624:  SJA review determined the case sufficient in law and fact.

 020627:  GCMCA, CG, 1 st Marine Division, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

 020701:  NJP for violation of UCMJ, Article 112a (1 Spec):
 Spec 1: In that PVT Jones, did at CamPen, or in civilian community, on or about 020602, did use marijuana.
 Awarded: forfeiture of ½ months pay $552.00 for 2 months (total forf $1,104.00), 45 days restriction and extra duty. Not appealed.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020703 under other than honorable conditions for misconduct due to a pattern of misconduct (A). The Board presumed regularity in the conduct of governmental affairs (B). 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 (C and D).
Issue 1. The Applicant contends that his problems in the Marine Corps Navy can be attributed to the fact that he was "17 yrs old” and the he “was young and dumb”. While he may feel that his age was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

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 three nonjudicial punishment proceedings for violations of Articles 86, 87, 108, and 134 of the UCMJ. Further, the Applicant received a fourth nonjudicial punishment for violation of Article 112a after having been notified of the CO’s intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct. 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 following is provided for the edification of the Applicant. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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 naval service. The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided any documentation for the Board to consider. 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 documentation to support any claims of post-service accomplishments or any other evidence related to his [or] her discharge 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 P1900.16F), effective 01 Sep 2001 until Present.

B. 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.

C. 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.
D. 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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