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NAVY | DRB | 2004 Marine | MD04-00787
Original file (MD04-00787.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD04-00787

Applicant’s Request
The application for discharge review was received on 20040414. 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 20041112. 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 realize now not even a year after separation that I made a huge mistake and I want to be a man and reenlist in the U.S.M.C. or at the least enlist in the Army to redeem myself.

 Dear Sir or Mama,
I’m attaching this letter to explain why I’m trying to get my discharge changed from general under other than honorable conditions, to general under honorable conditions. When I was in the USMC I made a few mistakes that at the time I thought wouldn’t affect my life at the least. Was discharged as a student at the School Of Infantry, so I never even gave myself the chance to see what the Marine Corps was really like. Now I’m at home going to basketball games and the national anthem comes on and I feel like a coward who ran away from his country and I’m disgusted with the choices I made before I was discharged. All I want is a chance to redeem myself Every day that passes, the more I see soldiers and Marines on news channels I wish I was fighting next to them. I know that if my discharge changes. I can try to get back in the Marine Corps, and if they will not give me another chance I plan to join the Army so I can be the man I was a year ago, and serve my country the way I should of before I made my poor decisions. Please take this into consideration when you are making your decision.

Sincerely,

D_ R_ C_ ( Applicant )”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 1 and 4)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                021107 - 030217  COG

 Period of Service Under Review :
Date of Enlistment: 030218               Date of Discharge: 031117

 Length of Service (years, months, days):

         Active: 00 09 00 (Does not exclude lost time)
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 42

 Highest Rank: Pvt                          MOS: 9900

 Final Enlisted Performance Evaluation Averages (number of marks ):

 Proficiency: 3.6 (2)                       Conduct: 3.6 (2)

 Military Decorations: None

 Unit/Campaign/Service Awards: MRB, NDSM

 Days of Unauthorized Absence: 55

 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 :

030702:  Applicant to unauthorized absence.

030729:  Applicant from unauthorized absence (27 days).

030806:  NJP for violation of UCMJ, Article 86:
 Specification: Absent from appointed place of duty on 1530, 030702 to 1530, 030729.
Awarded forfeiture of $575.00 per month for 2 months, restriction for 60 days. Not appealed.
030806:  Counseled for deficiencies in performance and conduct. [Violation of Article 86 (UA) of the UCMJ resulting in NJP held on 030806.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
030816:  Applicant to unauthorized absence.

030913:  Applicant from unauthorized absence (28 days).

 030926:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86:
         Specification: Absent from appointed place of duty on 1100, 030816 to 0935, 030913 (28 days).
          Finding: to Charge I and the specification thereunder, guilty.
          Sentence: Forfeiture of $767.00, confinement for 30 days.
         CA action 960926: Sentence approved and ordered executed.

030926:  Applicant to confinement.

031002:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
031003:  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.

031020:  From confinement, to duty.

031023:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct. The factual basis for this recommendation was your Company NJP on 030806 for violation of Article 86 for your unauthorized absence from 030702 to 030729 and your summary court-martial on 030926 for violation of Article 86 for your unauthorized absence from 030816 to 030913.

031104:  SJA review determined the case sufficient in law and fact.

031107:  GCMCA [Commanding General, Marine Corps Base, Camp Lejeune, NC] 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 20031117 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. T he Applicant’s service was marred by award of nonjudicial punishment (NJP) and a summary court-martial for violation of UCMJ, Article 86. 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. An upgrade is inappropriate. Relief denied.

The NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces. Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment. A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.

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 P1900.16F), 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.
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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