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NAVY | DRB | 2004 Marine | MD04-01208
Original file (MD04-01208.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD04-01208

Applicant’s Request
The application for discharge review was received on 20040722. 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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041029. 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 HONORABLE CONDITIONS (GENERAL)/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

 The Applicant submitted no issues for the Board to consider.


Documentation
The Applicant did not submit any documentation for the Board to consider. He marked the box "WILL NOT BE SUBMITTED. PLEASE COMPLETE REVIEW BASED ON AVAILABLE SERVICE RECORDS" in the Supporting Documents section of his DD Form 293.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None                      
         Inactive: USMCR (J)                        890408 - 890503  COG

 Period of Service Under Review :
Date of Enlistment: 890504               Date of Discharge: 921204

 Length of Service (years, months, days):

         Active: 03 06 07 (Accounts for lost time)
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 39

 Highest Rank: PFC                          MOS: 5953, Air Traffic Control Radar Technician

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.2 (13)             Conduct: 3.7 (13)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR

 Days of Unauthorized Absence: None

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

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

 Chronological Listing of Significant Service Events :

900419:  NJP for violation of UCMJ, Article 92: … having knowledge of a lawful written order … failed to obey the same by drinking while under the legal (age) of 21.
 Awd red to Pvt, E-1, and forf of $100.00 per month for 2 months. Red susp for 6 mos. Not appealed.
900419:  Counseled for deficiencies in performance and conduct. [Drinking under the legal age of 21, and disobedience of a lawful order.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
900807:  NJP imposed and suspended on 900419 is hereby vacated.
900814:  Counseled for deficiencies in performance and conduct. [Failure to go to appointed place of duty.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
910703:  Counseled for deficiencies in performance and conduct. [Writing a check without sufficient funds to cover the cost of the check.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
911018:  Counseled for deficiencies in performance and conduct. [Unsatisfactory progress on weight control program.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
911125:  Counseled for deficiencies in performance and conduct. [Unsatisfactory progress on weight control program.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
920303:  NJP for violation of UCMJ, Article 86 (3 specs):
 Specification 1: UA (AWOL) fr 0900 to 1000 on 920208.
Specification 2: UA (AWOL) fr 1630 to 1700 on 920213.
Specification 3: UA (AWOL) fr 1631 to 1646 on 920218.
Awd red to Pvt, E-1, and forf of $392.00 per month for 1 month. Red and forf susp for 6 mos. Not appealed.
920306:  NJP imposed and suspended on 920302 is hereby vacated.
920415:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 92:
         Specification: Operated a motor vehicle on base while driving privileges were revoked.
         Charge II: violation of the UCMJ, Article 134:
         Specification: Broke restriction on 920304.
         Finding: to Charge I and the specification thereunder, guilty. To Charge II and the specification thereunder, guilty.
         Sentence: Forfeiture of $575.00 per month for 1 month, and 30 days conf.
         CA action 920423: Sentence approved and ordered executed.

920515:  SJA review determined the court was properly constituted and had jurisdiction over the accused and the offenses tried.

920610:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 92:
         Specification: Wrongful possession of alcohol in the barracks on 920520.
         Finding: to Charge I and the specification thereunder, guilty.
Sentence: 20 days extra duties.
          CA action 920612: Sentence approved and ordered executed.

920925:  Applicant notified of intended recommendation for separation from the service with an under honorable conditions (general) discharge by reason of misconduct due to minor disciplinary infractions as evidenced by the Applicant’s “discreditable involvement with military authorities during this enlistment as evidenced by two Summary Court-Martial convictions, two nonjudicial punishments and other adverse entries contained on page 11.”

920929:  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.

920929:  Commanding Officer recommended separation from the service with an under honorable conditions (general) discharge by reason of misconduct due to minor disciplinary infractions. The factual basis for this recommendation was the Applicant’s “discreditable involvement with military authorities during this enlistment as evidenced by two Summary Court-Martial convictions, two nonjudicial punishments and other adverse entries contained on page 11.”

921106:  SJA review determined the case sufficient in law and fact.

921106:  GCMCA [Commanding General, 2d Marine Aircraft Wing] directed the Applicant's separation from the service with an under honorable conditions (general) discharge by reason of misconduct due to minor disciplinary infractions.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was separated from the service on 19921204 with an under honorable conditions (general) discharge 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).
The Applicant introduced no decisional issues for consideration by the Board.
In the Applicant’s case, the Board discovered no impropriety or inequity; thereby, considering his discharge proper and equitable. A characterization of service of under other than honorable conditions is normally warranted when the service member’s conduct constitutes a significant departure from that expected of a member of the United States Marine Corps. The record is devoid of any evidence the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. The Applicant’s service record is marred by several negative page eleven counseling entries, the awarding of non-judicial punishment (NJP) on two separate occasions, and two Summary Court-Martial convictions . The Applicant’s summary of service clearly reflects his disobedience of the orders and directives regulating good order and discipline in the naval service, and demonstrated he was unsuitable for further service. An upgrade to honorable would be inappropriate. Relief denied.
 
 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 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. E vidence 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 any 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 additional documentation to support any claims of post-service accomplishments 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 ; Article 134, Broke restriction .
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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