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NAVY | DRB | 2004 Marine | MD04-00753
Original file (MD04-00753.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD04-00753

Applicant’s Request
The application for discharge review was received on 20040401. 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 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 wish to apply for VA benefits, especially education. I contend my discharge was unjust and that two(2) of the NJPs I received were also malicious. I served in the US Marines from November 28, 2000 through February 26, 2003. During the period of November 28, 2000 to September 26, 2001 I never received any adverse counselings or NJP concerning my duty performance. Matter of fact I was promoted to PFC on June 1, 2001. Then between September 27, 2001 to April 8, 2002 I received two(3) adverse counselings concerning my duty performance, however, I was also promoted to LCPL on January 1, 2002.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from Applicant

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                000314 - 001127  COG

 Period of Service Under Review :
Date of Enlistment: 001128               Date of Discharge: 030226

 Length of Service (years, months, days):

         Active: 02 02 29
         Inactive: None

 Age at Entry: 18                          Years Contracted: 5

 Education Level: 12                        AFQT: 73

 Highest Rank: LCpl                         MOS: 0231
Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.7 (4)                       Conduct: 3.2 (4)

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, NDSM

 Days of Unauthorized Absence: None

 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 :

010927:  Counseled for deficiencies in performance and conduct. [Insubordinate conduct towards a NCO.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
020312:  Counseled for deficiencies in performance and conduct. [Violation of a lawful order to report for SOTG PT.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
020408:  Counseled for deficiencies in performance and conduct. [Failed to be at assigned place of duty.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
020621:  Counseled for deficiencies in performance and conduct. [Failure to meet the Marine Corps height, weight, and body fat requirement.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
020813:  NJP for violation of UCMJ, Article 86: UA from armory formation on 020717 and guard forces formation on 020719.
 Awarded restriction for 30 days and extra duties for 15 days. Not appealed.
021017:  NJP for violation of UCMJ, Article 86: UA from place of duty on 020914.
 Awarded forfeiture of $619.00 per month for 2 months, restriction and extra duties for 45 days; reduction to PFC. Not appealed.
021031:  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 four counseling entries.
021105:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
021114:  Counseled for deficiencies in performance and conduct. [Recommended for administrative separation.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
021209:  Applicant requested to waive the administrative discharge board on the condition that he receive a general discharge.
030122:  CG, III MEF denied Applicant’s conditional waiver of the administrative discharge board.
030124:  Counseled for deficiencies in performance and conduct. [Insubordinate conduct towards a SNCO, disobedience to orders, and UA.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
030128:  Applicant waived right to an administrative discharge board.

 030131:  NJP for violation of UCMJ, Article 86: UA from place of duty on 030122; violation of UCMJ, Article 91: Disobeyed order from a MSgt to file maps in the map room; violation of UCMJ, Article 92: Disobeyed order from a GySgt to report to a MSgt.
 Awarded forfeiture of $575.00 per month for 2 months, restriction and extra duties for 45 days; reduction to Pvt. Not appealed.
030206:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

030210:  SJA review determined the case sufficient in law and fact.

030218:  GCMCA [CG, III MEF] 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 20030226 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).

 Issue 1. 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. The Applicant’s service was marred by award of nonjudicial punishment (NJP) on three occasions and adverse counseling entries on other occasions. 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. 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 NDRB. 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.
The Applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. 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 P1900.16F), effective 01 Sep 2001 until Present.

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; Article 91, disobey a SNCO; and Article 92, disobey a lawful order.
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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