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NAVY | DRB | 2004 Marine | MD04-01146
Original file (MD04-01146.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD04-01146

Applicant’s Request
The application for discharge review was received on 20040707. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record review. The Applicant did not list any representative on the DD Form 293. Subsequent to the application, the Applicant obtained the American Legion as the representative.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050201. 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: GENERAL (UNDER 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’m requesting an upgrade from “General Under Honorable” to an “Honorable” Discharge. I’ve been out of the Marine Corps since “97”. Since then I’ve had several jobs, these jobs have given me the opportunity to use my military skills where I learned in my M.O.S. I’m 30 years old with a five-year-old son. I went to Deury Institute for a semester. I had to quit due to my M.G.I. Bill. I found out I wasn’t eligible and was charged for that. I am requesting an upgrade so that I can be eligible for the M.G.I. Bill. I wish to further my education so I can provide my family with what I wasn’t provided as a young adult. I believe that I have a right to be given a good education. And I believe my son should be given a good education. By me going to school and graduating will offer me a better future for me as well as my son. During my time in the Marine Corps I was a young man. It was my first time away from home like millions of other Marines. But my discipline level was low. I was never really counseled or helped with any of my issues. Instead I believed my S.R.B. was judged and then I was just put in a category and labeled.”

 The American Legion did not provide any issues.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s resumé
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                940416 - 940417  COG

 Period of Service Under Review :
Date of Enlistment: 940418               Date of Discharge: 970331

 Length of Service (years, months, days):

         Active: 02 11 14
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 52

 Highest Rank: Cpl                          MOS: 0131

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.5 (8)                       Conduct: 4.2 (8)

 Military Decorations: None

 Unit/Campaign/Service Awards: REB, NDSM, SSDR, LoA (3), CoA (2)

 Days of Unauthorized Absence: 1

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.3.

 Chronological Listing of Significant Service Events :

941102:  Counseled for deficiencies in performance and conduct. [Your incapacitation for the proper performance of duties 0700, 940924 as a result of previous indulgence in intoxicating liquor.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
950626:  Counseled for deficiencies in performance and conduct. [Concerning unauthorized absence from the Rifle Range.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
950818:  NJP for violation of UCMJ, Article 117:
 Specification: Wrongfully use provoking words, to wit: “Fuck, fuck you bitch,” towards LCpl.
Awarded forfeiture of $200.00 per month for 1 month, restriction for 60 days. Forfeiture suspended for 3 months. Not appealed.
950921:  Counseled for deficiencies in performance and conduct. [Disrespect to NCOs in his chain of command.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
950927:  Vacate suspended forfeiture awarded at CO’s NJP dated 950818.

 961202:  Applicant in hands of civilian authorities.

 970106:  Counseled for deficiencies in performance and conduct. [Alcohol related incident, specifically criminal trespass, disorderly conduct, obstruction of justice, and simple battery on a police officer at approximately 0430, 961202 on Roswell Rd., Atlanta, GA.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
970123:  NJP for violation of UCMJ, Article 134:
 Specification: Wrongfully falsify a DD Form 2 (ID Card).
Awarded forfeiture of $553.00 per month for 1 month, extra duties for 30 days. Extra duty suspended for 6 months. Not appealed.
970227:  Vacate extra duty awarded at CO’s NJP dated 970123.

970302:  NJP for violation of UCMJ, Article 86:
 Specification: Unauthorized absence 0600-0853, 970222.
Awarded restriction for 60 days, reduction to E-2. Reduction suspended for 2 months. Not appealed.
970307:  Applicant’s statement.

 970318:  Applicant notified of intended recommendation for discharge under honorable conditions (general) by reason of misconduct due to a pattern of misconduct. Applicant notified that the lowest characterization of service possible was under other than honorable conditions.
970318:  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 and to submit a statement.

970318:  Commanding Officer recommended discharge general (under honorable conditions) by reason of misconduct due to a pattern of misconduct.

970326:  SJA review determined the case sufficient in law and fact.

970326:  GCMCA [Marine Forces Reserves] directed the Applicant's discharge general (under 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 19970331 with a general (under 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. 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 for provoking words, falsifying an ID Card, and unauthorized absence. The Applicant also had 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. Relief denied.

 The Veterans Administration determines eligibility for post-service benefits, not the NDRB. There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans’ benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.
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 occurred 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. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that 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, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that may be provided to receive consideration for relief, based on post-service conduct. The Applicant’s evidence of post-service conduct was found not to mitigate his misconduct sufficient to warrant an upgrade to his discharge. 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 P1900.16E), effective 31 Jan 97 until 31 Aug 01.

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 117, provoking words; and Article 134, falsifying an ID Card.
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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