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NAVY | DRB | 2004 Marine | MD04-01241
Original file (MD04-01241.rtf) Auto-classification: Denied


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


ex-LCpl, USMC
Docket No. MD04-01241

Applicant’s Request
The application for discharge review was received on 20040728. 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 designate a representative on the DD Form 293.

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. “My reason for the upgrade so I could become an Washington DC Metro Transit Police, I also need the upgrade to take the Capitol Police and Fairfax County Police Dept. test. My other than honorable discharge wouldn’t let myself become an officer in any state. I fill that if my discharge is upgraded I could become a police officer and that’s the experience I have received while I was in the Marine Corps. With out an honorable discharge I cant become a police officer. My discharge was other than honorable (misconduct) and I would like to change it to honorable discharge.”
Documentation
Only the service record was reviewed, as the Applicant did not provide any documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: None
          Active: USN                        960312 - 960326  Uncharacterized (ELS)
         Active: USMC              980826 - 020620  HON

 Period of Service Under Review :
Date of Enlistment: 020621               Date of Discharge: 031001

 Length of Service (years, months, days):
         Active: 01 03 11
          Inactive: None
Age at Entry: 24                          Years Contracted: 4 years and 3 months

 Education Level: 12                        AFQT: 34
Highest Rank: Cpl                          MOS: 0311/0352

 Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: 4.3                           Conduct: 4.2 [Extracted from SJA’s ltr 15Sep03]
Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR(2), MUC, Rifle Marksmanship Badge
Days of Unauthorized Absence: None

 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 :

020621:  Reenlisted at 2 nd Battalion 5 th Marines, Camp Pendleton for 4 years and 3 months for lateral move into 0352, provided completion of MOS 0352 training.
021231:  NJP for violation of UCMJ, Article 86: SNM did at Range 505, WFTBn (MCRD), on or about 0515, 021229, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Range 505 morning muster, SNM did not report in until 1600.
 Awarded forfeiture of $420.00 pay per month for 1 month, restriction and extra police duties for 30 days. Not appealed.
030325:  Counseled for deficiencies in performance and conduct [integrity violations and lapses in judgment]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
030826:  NJP for violation of UCMJ, Article 111: In that SNM did, while on onboard Camp Pendleton, CA, on or about 0130, 23 Aug 03, operate a privately owned motor vehicle on base while intoxicated, with a BAC of .158.
 Violation of UCMJ, Article 92: In that SNM, having knowledge of a lawful order not to drive on base, an order which was his duty to obey, did fail to obey the same.
Awarded reduction to E-3, forfeiture of $764.00 pay per month for 2 months (suspended for 6 months), restriction and extra police duties for 45 days. Not appealed.
030827:  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 pattern of misconduct and your actions have demonstrated that you have no potential for further military service.
030902:  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.
030902:  Counseled for deficiencies in performance and conduct [operating a privately owned motor vehicle while intoxicated with a BAC of .158% and disobedience of a lawful order]. Necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative separation.
030902:  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 is the application’s pattern of misconduct. By his actions he has demonstrated that he has no potential for further military service.
030915:  SJA review determined the case sufficient in law and fact.

 030918:  GCMCA [CG, MCRD/WRR San Diego] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

030918:  Applicant issued order barring him from the Marine Corps Recruit Depot, San Diego, and all Marine Corps Bases, Western Area.
PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20031001under 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. The Applicant’s service was marred by nonjudicial punishment proceedings for violations of Articles 86, 92 and 111 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. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

The following is provided for the edification of the Applicant. 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, credible evidence of a substance free lifestyle 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. 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 111, drunken driving.
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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