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NAVY | DRB | 2004 Marine | MD04-00862
Original file (MD04-00862.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD04-00862

Applicant’s Request
The application for discharge review was received on 20040427. The Applicant requests the characterization of service received at the time of discharge be changed to honorable or 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 20041022. 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. 6210.6.
The NDRB did note an administrative error on the original DD Form 214. Block 12c, Net Active Service This Period, should read: "03 00 13" vice "02 02 21." The Commandant, Headquarters USMC, Quantico, VA, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.



PART I - APPLICANT’S ISSUES AND DOCUMENTATION


 Issues, as stated

Applicant’s issue, as stated on the application:

1. “I feel that I at least deserve the opportunity to have my records reviewed in hopes of having my discharge upgraded to a deserved honorable.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (4)
Copy of Separation Orders (2)
Letter from Applicant
Letter of Support from L_ A_
Letter of Support from R_ C_ (no signature)
Letter of Support from J_ C. M_ (no signature)
Letter of Support from K_ T_ (no signature)
Character Reference Letter from E_ C_, dated October 12, 2003
Character Reference Letter from T_ C_, dated October 11, 2003
Character Reference Letter from D_ R_
Letter of Support from S_ G_
Letter of Recommendation from J_ B_
Letter of Recommendation from C_ F_ (no signature)
Letter of Recommendation from J_ A. B_ (no signature)
Letter of Recommendation from A_ A. R_ (no signature)
Letter of Recommendation from A_ M. S_ (no signature)
Letter of Recommendation from T_ T. A_ (no signature)
Letter of Recommendation from F_ T. S_ (no signature)
Letter of Recommendation from J_ F. B_ (no signature)
Letter of Recommendation from S_ G. L_ (no signature)
Letter of Recommendation from B_ H_ (no signature)
Letter of Recommendation from J_ W_ (no signature)
Letter of Recommendation from D_ T. B_ (no signature)
Letter of Recommendation from D_ P_ (no signature)
Letter of Recommendation from C_ C. R_ (no signature)
Letter of Recommendation from K_ B_ (no signature)
Letter of Recommendation from R_ J_ (no signature)
Letter of Recommendation from J_ H_ (no signature)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                990909 - 990919  COG

 Period of Service Under Review :
Date of Enlistment: 990920               Date of Discharge: 021003

 Length of Service (years, months, days):

         Active: 03 00 13                  Does not exclude lost time
         Inactive: None

 Age at Entry: 21                          Years Contracted: 4

Education Level: 12                        AFQT: 43

 Highest Rank: LCpl                         MOS: 3531

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.0 (6)                       Conduct: 3.5 (7)

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 327

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.6.

 Chronological Listing of Significant Service Events :

000921:  NJP for violation of UCMJ, Article 92: In that SNM, having knowledge of a lawful order issue by the Commanding General, MCB, Camp Pendleton, CA, on 26 June 2000, failed to obey the same by reporting to JRC and fraudulently applying for a new registration decal, HMA 964. Violation of Article 92, UCMJ: In that SNM, having knowledge of a lawful order issued by 1stLt A_, to return base vehicle pass (HMA 964) to lstLt, an order which was his duty to obey, did on board Camp Pendleton, CA, on or about, 28 June 2000, fail to obey the same by wrongfully keeping the base pass. Violation of Article 92, UCMJ in that [APPLICANT], having knowledge of a lawful order issued by 1stSgt A_, to retrieve the base vehicle pass from the trash and return it to lstSgt A_, an order which it was his duty to obey, did on board Camp Pendleton, CA on or about 25 June 2000, fail to obey the same by wrongfully keeping the base pass. Violation of Article 107, UCMJ: In that [APPLICANT], on board Camp Pendleton, CA did on 26 June 2000, with the intent to deceive, provided information on MCB Camp Pendleton Private Vehicle Registration Form that was partially false in that he gave incorrect SSN, VIN and insurance policy number, and was known by the said named Marine to be false. Violation of Article 107, UCMJ: In that [APPLICANT], on board Camp Pendleton, CA did on or about 28 June 2000, with the intent to deceive, make to 1stLt A_, an official statement, to wit: “I can not return my base vehicle pass to you because I threw it in the platoon trash can,” was totally false, and was then known by the said named Marine to be false. Violation of Article 107, UCMJ: In that [APPLICANT], on board Camp Pendleton, CA, did on 1 August 2000 with the intent to deceive, make to lstLt A_ an official statement, to wit: “My registration decal was stolen off my car a few weeks ago and I have been using my ID to enter the base,” was totally false, and was then known by the said named Marine to be false. Violation of Article 107, UCMJ: In that [APPLICANT], on board Camp Pendleton, CA did on 1 August 2000, with the intent to deceive, make to 1stLt A_ an official statement by answering NO to the question: “Do you today have a registration decal on your vehicle?” which was totally false, and was then known by the said named Marine to be false. Violation of Article 134, UCMJ: In that [APPLICANT] did on board Camp Pendleton, CA on or about 28 June 2000, wrongfully sell to PFC J_ for $20.00, an official base vehicle pass (HMC 473) assigned to [APPLICANT], well knowing the same to be unauthorized
Awarded forfeiture of $262.00 pay per month for 1 month, restriction and extra duty for 14 days. Not appealed.
        
001121:  Counseled for deficiencies in performance and conduct. [Failing the Semi-Annual PFT.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
011012:  Applicant to UA.
020904:  Applicant from UA (327 days/A).

020909:  Report of Return of Deserter. Applicant apprehended by civil authorities on 020904 (1745) at Clark County Sheriff’s Department. Returned to military control 020904. Retained.
020910:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
020910:  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.
020916:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. The factual basis for this recommendation was the respondent’s unauthorized absence from 011012 to 020904, a 86, UCMJ.

020930:  SJA review determined the case sufficient in law and fact.

021001:  GCMCA [Commander, Marine Corps Base, Camp Lejeune] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20021003 under other than honorable conditions for misconduct due to the commission of a serious offense (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. 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 nonjudicial punishment proceedings for eight violations of Articles 92, 107 and 134 of the UCMJ in addition to an unauthorized absence period in excess of 325 days. 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 Marine Corps and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and/or the reason for discharge if such change is warranted. There is no evidence of impropriety or inequity in the Applicant’s discharge. The Applicant’s misconduct is clearly documented. Therefore, relief is 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. 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 01 September 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 for more than 30 days.

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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