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NAVY | DRB | 2004 Marine | MD04-01068
Original file (MD04-01068.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD04-01068

Applicant’s Request
The application for discharge review was received on 20040615. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge review. The Applicant did not list any representative on the DD Form 293. The DD Form 293 was forward to the Board by the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041222. 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. “While on active duty, I was performing a 10 mile hike with my platoon and fell injuring my back. The next day I woke up in severe pain. I went to the Naval Base Clinic and I was treated for a lower back spine vertebras that had shifted. I was put into a medical rehabilitation platoon for approximate 5 weeks. After which, I was placed back in my platoon although I was still in severe pain. I was told to continue training or be put out. Due to the pain I was experiencing, I had to choose to be discharged under other than honorable conditions. This was my second incident in which the first incident was an unauthorized absent in which I had already received punishment for. I enjoyed being on active duty. My first incident was to my first thing being away from home, but after returning to my discharge upgrade allow with a reenlistment code change that would afford me the opportunity to return to active duty. I never wanted to leave the military.”

 No issues were submitted by The American Legion.

 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: None
         Inactive: USMCR(J)                020117 - 020127  COG

 Period of Service Under Review :
Date of Enlistment: 020128               Date of Discharge: 021114

 Length of Service (years, months, days):

         Active: 00 09 17
         Inactive: None

 Age at Entry: 22                          Years Contracted: 4

 Education Level: 14                        AFQT: 48

 Highest Rank: PFC                          MOS: 9900

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.6 (2)                       Conduct: 2.4 (3)

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 29

 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 :

020715:  Counseled for deficiencies in performance and conduct. [Unauthorized Absence.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020722:  NJP for violation of UCMJ, Article 86: Unauthorized absence, 31 May 02 to 27 June 02 (27 das).
 Awarded forfeiture of $552.00 per month for 2 months, restriction and extra duties for 45 days, RIR E-1. RIR susp 6 mos. Not appealed.
020914:  RIR susp 020722 vacated.
020917:  Counseled for deficiencies in performance and conduct. [Unauthorized Absence.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020917:  NJP for violation of UCMJ, Article 86, unauthorized absence 2 Sep 02 to 4 Sep 02. Article 134, Breaking restriction.
Awarded forfeiture of $552.00 per month for 2 months, restriction and extra duties for 45 days. Not appealed.
021004:  NJP for violation of UCMJ, Article 92, failure to obey an order to train.
 Awarded forfeiture of $552.00 per month for 2 months, restriction and extra duties for 45 days. Not appealed.
021009:  Counseled for deficiencies in performance and conduct. [Violation of Article 92.] Necessary corrective actions explained, sources of assistance provided.
021021:  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 three nonjudicial punishments.
021021:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

021021:  Applicant’s statement: [I know I’m not a good marine or represent marines in the manor they should be represented in and I don’t want to be a marine.]
021021:  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 the Applicant’s three NJP’s.
021029:  Commanding Officer, School of Infantry, recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct. Comments: [Applicant] also stated he has made stupid mistakes and only want out of the Corps so he can get on with his life.

021101:  SJA review determined the case sufficient in law and fact.

021107:  GCMCA [CG MCB CLNC] 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 20021114 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. 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 three nonjudicial punishment proceedings for four violations of Articles 86, 92 and 134 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 Marine Corps and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

The Applicant contends that his problems in the Marine Corps can be attributed to his "severe pain". While he may feel that his medical condition was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

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 P1900.16F), 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 92, failure to obey an order.
C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

 E. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .

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 “ http://Boards.law.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:

                  Secretary of the Navy Council of Review Boards
                   Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023

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