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NAVY | DRB | 2004 Marine | MD04-00794
Original file (MD04-00794.rtf) Auto-classification: Denied


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

ex-LCpl, USMCR
Docket No. MD04-00794

Applicant’s Request
The application for discharge review was received on 20040408. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance hearing discharge review before the Board in the Washington, D.C. Metropolitan area. The Applicant listed private counsel as his representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

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 HONORABLE CONDITIONS (GENERAL)/Misconduct-Pattern of misconduct (with administrative discharge board), authority: MARCORSEPMAN Par. 6210.3.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

 1. “TO WHOM IT MAY CONCERN:
I, R_ J. P_ (Applicant), do request an upgrade of my discharge. I was 17 years old when I entered the Marine Corps. I served my country to the best of my physical and mental abilities at the time. I was discharged for conduct unbecoming of a Marine at a confusing time in my life. I did wish to spend along time in the Corps but, as everyone has, I made a terrible mistake of judgement at a time when our country was downsizing. My conduct was never questioned when I was on duty. I was a good Marine, just not a good civilian. Please take a look at my files and use your best judgement to offer me a second chance to better myself in the eyes of anyone whom looks on my past.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: None

 Period of Service Under Review :
Date of Enlistment:     900618   Date of Discharge: 930622

 Length of Service (years, months, days):

         Active: 00 07 04
         Inactive: 02 05 01

 Age at Entry: 18                          Years Contracted: 8

 Education Level: 12                        AFQT: 87

 Highest Rank: LCpl                         MOS: 2111

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (4)                       Conduct: 3.8 (4)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, MUC

 Days of Unauthorized Absence: None

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

UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct-Pattern of misconduct (with administrative discharge board), authority: MARCORSEPMAN Par. 6210.3.

 Chronological Listing of Significant Service Events :

910131:  NJP for violation of UCMJ, Article 107: Make false statements on 910130 in the liberty logbook that two Marines had returned with full knowledge that they had not.
 Awarded forfeiture of $376.00, restriction and extra duties for 14 days. No indication of appeal.
910219:  NJP for violation of UCMJ, Article 86: UA from restriction muster on 910218.
 Awarded forfeiture of $376.00, restriction and extra duties for 14 days, reduction to Pvt (suspended for 6 months). Not appealed.
921206:  Counseled for deficiencies in performance and conduct. [Involvement with civil authorities to include conviction in a civilian court for the manufacture and use of explosives. You will not be assigned to your primary MOS due to this incident.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
921206:   Counseled for deficiencies in performance and conduct. [Financial irresponsibility.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
930108:  Counseled for deficiencies in performance and conduct. [Pattern of misconduct over the last two years.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
930207:  NJP for violation of UCMJ, Article 86: UA from 1300-1500, 921206.
 Awarded forfeiture of $46.00, reduction to PFC (all suspended for 6 months). Not appealed.
930207:  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 NJPs and two page 11 counselings.
930207:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
930330:  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 honorable conditions (general).

930331:  Commanding Officer recommended discharge under honorable conditions (general) by reason of misconduct due to a pattern of misconduct.

930614:  SJA review determined the case sufficient in law and fact.

930622:  GCMCA [CG, MRF] directed the Applicant's discharge under honorable conditions (general) 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 19930622 under honorable conditions (general) 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 honorable conditions (general) 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. T he 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, and falls short of that required for an honorable characterization of service. An upgrade to honorable is inappropriate. While the NDRB respects the Applicant’s claim that he served to the best of his abilities, his service is equitably characterized as being performed under honorable conditions (general). Relief is not warranted.

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 P1900.16D), effective 27 Jun 89 until 17 Aug 95.

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; and Article 107, false official statements.
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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