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NAVY | DRB | 2004 Marine | MD04-01061
Original file (MD04-01061.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD04-01061

Applicant’s Request
The application for discharge review was received on 20040615. The Applicant requested the characterization of service received at the time of discharge be changed to honorable. The Applicant requested a documentary record review. The Applicant did not list a representative on his DD Form 293. In the acknowledgement letter, the Applicant was informed that he was approaching the 15-year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington, D.C. area. Applicant did not respond.

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 – Minor disciplinary infractions (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.2.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

 1. “I respectfully request a discharge upgrade for medical reasoning and am interested in applying for veterans benefits
I have had no legal infractions post discharge date.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC                       850604 - 890424  HON
         Inactive: USMCR (J)                        840712 - 850603  COG

 Period of Service Under Review :
Date of Enlistment: 890425               Date of Discharge: 901109

 Length of Service (years, months, days):

         Active: 01 06 15
         Inactive: None

 Age at Entry: 22                          Years Contracted: 4

Education Level: 12                        AFQT: 60

 Highest Rank: Cpl                          MOS: 0481, Landing Support Specialist

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.2 (5)              Conduct: 4.0 (5)

 Military Decorations: GCM

 Unit/Campaign/Service Awards: MeritM, SSDR (w/1 star)

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Minor disciplinary infractions (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.2.

 Chronological Listing of Significant Service Events :

890829:  NJP for violation of UCMJ, Article 86: … failed to go to his appointed place of duty.
 Awarded forfeiture of $235.00 per month for 1 month, and 14 days extra duties. Forf in excess of $50.00 per month for 1 month susp for six mos. Not appealed.
900427:  Counseled for deficiencies in performance and conduct. [Disenrollment from NCOBC 5-90 for academic reasons. … received five personal counselings for failures of exams, presentations, or inspections.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

900807:  Counseled for deficiencies in performance and conduct. [Lack of leadership and discipline … questioned the authority of a senior staff noncommissioned officer … this incident is a recurring trend …] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

 900810:  NJP for violation of UCMJ, Article 92 (3 specs):
 Specification 1: … viol BnO 5353.1D …
Specification 2: … dereliction in the performance of duties by failing to enforce BnO 5353.1D …
Specification 3: … Viol of Art 1102, U.S. Navy Regs, by failing to safeguard the physical well-being and general welfare of … an enlisted person under his charge.
Awd red to E-3, forf of $200.00 per month for 2 months, and 30 days restriction and extra duties. Forf susp for 6 mos. Not appealed.
900924:          Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions as evidenced by “two nonjudicial punishments” and “being counseled on several occasions concerning his deficiencies.”

900926:          Applicant advised of rights and having consulted 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.

900926:          Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions. The factual basis for this recommendation was the Applicant’s “two nonjudicial punishments” and “being counseled on several occasions concerning his deficiencies.”

901005:  SJA review determined the case sufficient in law and fact.

901010:  GCMCA [Commanding General, 3d Force Service Support Group] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19901109 under other than honorable conditions for misconduct due to minor disciplinary infractions (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: The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board (NDRB). There is no requirement or law that grants recharacterization solely on the issue of obtaining Veteran’s benefits. This issue does not serve to provide a foundation upon which the Board can grant relief.

T here 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. However, the NDRB is authorized to consider outstanding 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. Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. Evidence of continuing educational pursuits, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct. At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty. 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 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 P1900.16D), 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; Article 92, Failure to obey order or regulation .
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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