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NAVY | DRB | 2004 Marine | MD04-01266
Original file (MD04-01266.rtf) Auto-classification: Denied


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

ex-CPL, USMC
Docket No. MD04-01266

Applicant’s Request
The application for discharge review was received on 20040806. 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 listed J_ K. C_, Veterans Services, as his 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 HONORABLE CONDITIONS (GENERAL)/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.2.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“(1) I was an outstanding Marine up until the time I married the wrong woman which caused personal problems that affected my ability to serve.

(2) When I advised I would accept a General Under Honorable I was advised that I would be entitled to all benefits including education after I got out I was advised that I was not entitled to education benefits. I do not believe my military service was so bad that I lose my education benefits.

(3) I believe my overall military service was honorable and I should be entitled to an honorable discharge.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Two letters from Applicant
Copy of DD Form 215
Twenty-four pages from Applicant’s service record
Letter from J_ K. C_
Copy of Associate in Applied Sciences degree
College transcript
Letter from J_ C_, MD
Character reference from J_ H_

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC                       900716- 951130
         Inactive: USMCR(J)                         890721 - 900715  COG

 Period of Service Under Review :
Date of Enlistment: 951201               Date of Discharge: 980616

 Length of Service (years, months, days):

         Active: 02 06 16
         Inactive: None

 Age at Entry: 23                          Years Contracted: 4

 Education Level: 12                        AFQT: 87

 Highest Rank: Sgt                          MOS: 6060

 Final Enlisted Performance Evaluation Averages (number of marks):

Applicant’s FITREPS were available for review thru 980109

 Military Decorations: None

 Unit/Campaign/Service Awards: JUC, NUC, MUC, GCM (w/1*), KLM (K), NDSM, SWASM (w/1*), SSDR (w/2*), CC (2), LA (2), MM

 Days of Unauthorized Absence: None

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

UNDER HONORABLE CONDITIONS (GENERAL)/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.2.

 Chronological Listing of Significant Service Events :

960328:  Counseled for deficiencies in performance and conduct. [Conduct unbecoming of a Marine NCO and disrespect towards fellow Marine NCOs.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960918:  Counseled for deficiencies in performance and conduct. [Arrest by Yuma PD for DUI on 960823 with a BAC of .16%.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

961010:  Substance abuse evaluation determined the Applicant to be an alcohol abuser. Recommended for Level I education.

980109:  NJP for violation of UCMJ, Article 134: Driving a POV on a revoked license on 971114.
         Award: Forfeiture of $716.00 per month for 2 months (suspended for 6 months), reduction to Cpl. Not appealed.
980112:  Counseled for deficiencies in performance and conduct. [Use of illegal drugs. Voluntary disclosure to a family advocacy specialist on 971029.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
980130:  Refused the opportunity to see a Substance Abuse Counselor.

980226:  Counseled for deficiencies in performance and conduct. [Disrespectful to a Sergeant on 980219.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
980417:  Commanding Officer recommended discharge under honorable conditions (general) by reason of misconduct due to minor disciplinary infractions.

980417:  Applicant notified of intended recommendation for discharge under honorable conditions (general) by reason of misconduct due to minor disciplinary infractions as evidenced by one NJP and three pg. 11 entries. Applicant informed the lowest characterization possible was under other than honorable conditions.
980508:  Applicant requested conditional waiver of his requested administrative discharge board upon the granting of a general discharge.
980512:          Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
980610:  SJA review determined the case sufficient in law and fact.

980616:  GCMCA [Commander, Marine Corps Air Bases Western Area] directed the Applicant's discharge under honorable conditions (general) by reason of misconduct due to minor disciplinary infractions.

 PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19980616 under honorable conditions (general) 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).

Issues 1 and 3. 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 one occasion for violation of UCMJ, Article 134 and 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. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions . An upgrade to honorable is inappropriate. Relief denied.

Issue 2. 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 Board recommended that the Applicant’s DD Form 214 be corrected to reflect his over five years of honorable service. The Applicant’s discharge characterization accurately reflects his service to his country during the enlistment under review. 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 2001.

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 134, driving on a revoked license.
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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