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NAVY | DRB | 2004 Marine | MD04-01064
Original file (MD04-01064.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD04-01064

Applicant’s Request
The application for discharge review was received on 20040618. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions or entry level separation or uncharacterized. 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 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 want my discharge changed to eather General/under Honorable conditions or Entry level separation since I never got out of MCT and change my separate code changed and my Reentry code change. I was young and dumb at this time and didn’t know what I was doing since then I have been working at Fed-ex and going to school.

Thank you for your time.”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                980928 - 990726  COG

 Period of Service Under Review :
Date of Enlistment: 990727               Date of Discharge: 000511

 Length of Service (years, months, days):

         Active: 00 09 16
         Inactive: None

 Age at Entry: 19                          Years Contracted: 5

Education Level: 12                        AFQT: 52

 Highest Rank: PVT                          MOS: 9971

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 1.9 (3)                       Conduct: 1.9 (3)

 Military Decorations: None

 Unit/Campaign/Service Awards: RSB

 Days of Unauthorized Absence: 51

 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 :

991111:  Applicant to UA (AWOL) at 0716, 991111.

991207:  Applicant from UA, surrendered at SOI, CamPen, at 1000, 991207.
991229:  Counseled for deficiencies in performance and conduct. [Art 86 UA from 0716/991111 to 1000/991207.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

991229:  NJP for violation of UCMJ, Article 86: At SACo, HqSptBn, SOI, MCB CamPen, UA fr 0716, 991111 to 1000, 991207.
Awarded: forfeiture of $223.00 per month for 1 month (total forf $223.00), 14 days restriction to the limits of SOI, MCB CamPen w/o susp from duty and 14 days extra duty to run concurrently. Not appealed.
000111:  NJP for violation of UCMJ, Articles 91, 92, 113: At G Co, MCTBn, SOI, MCB CamPen, on 000106 failed to throw grenades when instructed to do so; failure to obey orders by not awaking at reville and also when instructed to do so by squad instructors; on 000107 while posted on duty left post without proper relief.
 Awarded: forfeiture of $234.00 per month for 1 month (total forf $234.00), 14 days restriction to the limits of SOI, MCB CamPen w/o susp from duty and 14 days extra duty to run concurrently. Not appealed.
000131:  Applicant to UA (AWOL) at 2147, 000131.

000226:  Applicant from UA, surrendered at SOI, CamPen at 0925, 000226.

000403:  NJP for violation of UCMJ, Article 86: At SACo, HqSptBn, SOI, MCB CamPen, UA fr 2147, 000131 to 0925, 000226.
Awarded: forfeiture of $502.00 per month for 2 months (Total forf $1004.00), 45 days restriction to the limits of SOI, MCB CamPen w/o susp from duty and 45 days extra duty to run concurrently. Not appealed.
000407:  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 your failure to obey rules and regulations.
000407:  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.

 000407:  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 “Private J_’s failure to obey rules and regulations. His intolerable actions over the past four months have resulted in four nonjudicial punishments and one 6105 counseling. Through his actions, Private J_ has demonstrated that he no longer possesses the potential, nor the desire, for continued honorable service in the Marine Corps.”

000412:  Applicant to voluntary leave awaiting administrative separation.

000503:  SJA review determined the case sufficient in law and fact.

000503:  GCMCA, CG MCB Base, Camp Pendleton, 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 20000511 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. When the service of a member of the U.S. Marine Corps has been honest and faithful, it is appropriate to characterize that service as honorable. 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. During 5 months at the SOI, Camp Pendleton, CA, the Applicant’s service was marred by 3 nonjudicial punishment proceedings for violations of Articles 86 (a total of 51 days UA), 91, 92, and 113 of the UCMJ. 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 U.S. Marine Corps and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

By regulation, members discharged within the first 180 days of enlistment are given characterization of service "Uncharacterized" or entry-level separation unless there were unusual circumstances regarding performance or conduct, which would merit an "honorable" characterization. The Applicant was notified of the intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct on the 255 th day of his service in the U. S. Marine Corps, therefore relief is not warranted.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reentry into the naval service or any other of the Armed Forces. The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy or Marine Corps. Reenlistment policy of the naval service or Marine Corps is promulgated by the Commandant, United States Marine Corps, Code MMEA, 3280 Russell Road, Quantico, VA 22134. Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment. A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.

Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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 naval service. The NDRB is authorized, however, to consider 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. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided any documentation for the Board to consider. 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 P1900.16F), 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, 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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