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NAVY | DRB | 2004 Marine | MD04-01296
Original file (MD04-01296.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD04-01296

Applicant’s Request
The application for discharge review was received on 20040810. 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 representation from the Veterans of Foreign Wars.

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: UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct-Pattern of misconduct (with administrative discharge board), authority: MARCORSEPMAN Par. 6210.3.



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

1. “To whom it may concern,

I am writing you this in hopes of getting my general under honorable conditions Discharge upgraded to a full honorable discharge. I do acknowledge that I made mistakes while serving in the Marine Corps, but I do beleive I served my country honorably. I was asked at one point in my military career If I wanted out of the military and I said no. I served my full enlistment of 6 years with pride. I served my country dutifully in the persian gulf war from Dec. ’90 to June ’91. Therefore with all do respect I ask you to please remove this burden from me and upgrade my discharge to a full honorable discharge.”

Additional issues submitted by Applicant’s representative (Veterans of Foreign Wars):

 2. “ Applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning his application. His records were reviewed on January 7, 2005 and the following comments are hereby submitted.

EQUITY ISSUE: Based on our review of the evidentiary record and on behalf of this former member, we request that the Board consider provisions of SECNAVINST 5420.174C, enclosure (1), chapter 9 9.3(1) (B), as it pertains to the former members past enlistment.

The former member is requesting an upgrade to an Honorable Discharge. We ask for a full review of the facts and circumstances that may qualify the former member to any benefit of relief.

To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consisted in law, regulation, policy and discretion as promulgated by 10 V.S.C. section 1553, and set forth in 32 C.F.R., part 724 and SECNAVINST 5420.174C,
enclosure (1).

We refer this case to the Board for their careful and compassionate consideration and request the Applicants discharge be reviewed for an upgrade discharge. ”






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

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                870218 - 870914  COG

 Period of Service Under Review :
Date of Enlistment: 870915                        Date of Discharge: 931116

 Length of Service (years, months, days):

         Active: 05 11 29 (Does not include lost time)
         Inactive: None

 Age at Entry: 17 parental consent                Years Contracted: 6

 Education Level: 12                                 AFQT: 54

 Highest Rank: LCpl                                  MOS: 0351

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.2 (15)                               Conduct: 4.0 (15)

 Military Decorations: None

 Unit/Campaign/Service Awards: RMB, PSB, SSDR with 2 Stars, SASM with 3 Stars, NDSM, CAR, NUC, JMUA, HSM, KLM

 Days of Unauthorized Absence: 29

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

UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct-Pattern of misconduct (with administrative discharge board), authority: MARCORSEPMAN Par. 6210.3.

 Chronological Listing of Significant Service Events :

880228:  Counseled for deficiencies in performance and conduct. [Unauthorized absence.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
880229:  NJP for violation of UCMJ, Article 86:
 Specification: Unauthorized absence from 1600, 880215 to 2205, 880227 (12 days/S).
Awarded forfeiture of $175.00 per month for 1 month, restriction and extra duties for 14 days. Restriction and extra duty suspended for 3 months. Not appealed.
900309:  NJP for violation of UCMJ, Article 134:
 Specification: Wrote several checks to the Okinawa Exchange on his account at the Navy Federal Credit Union for the total amount of $611.25 without sufficient funds in the account for payment, between 891221 and 900131 at Okinawa, Japan.
Awarded forfeiture of $405.00 per month for 1 month, restriction and extra duties for 30 days, reduction to E-2. Forfeiture suspended for 6 months. Not appealed.
900928:  Applicant to confinement.

901031:  Applicant from confinement.

 901031:  NJP for violation of UCMJ, Article 86:
 Specification: Unauthorized absence from 0701, 900910 to 0015, 900928 (17 days/S).
Awarded forfeiture of $362.00 per month for 2 months, restriction and extra duties for 30 days, reduction to E-1. Forfeiture, restriction and extra duty suspended for 6 months. Not appealed.
921004:  Counseled for deficiencies in performance and conduct. [Failure to adapt to rules and regulations. Frequent involvement with military authorities.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
930413:  Counseled for deficiencies in performance and conduct. [Poor judgment and lack of maturity.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
930727:  NJP for violation of UCMJ, Article 111:
 Specification: Operate a motor vehicle onboard Naval Training Center, San Diego, CA while drunk, to wit: the breath test administered resulted in a BAC of .13%.
Awarded forfeiture of $456.00 per month for 2 months, restriction and extra duties for 45 days, reduction to PFC. Restriction and extra duty suspended for 6 months. Not appealed.
930826:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
930827:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
930830:  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 your four nonjudicial punishments.

 931004:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to a pattern of misconduct, that the misconduct warranted separation, and recommended discharge under honorable conditions (general).

931025:  SJA review determined the case sufficient in law and fact.

931103:  GCMCA [Commanding General, 1 st Marine Division (Rein), FMF] directed the Applicant's discharge under honorable conditions (general) 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 19931116 under honorable conditions (general) 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).

Issues 1 and 2. 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 four occasions for unauthorized absences, writing checks without sufficient funds, and drunk driving. 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. Relief denied.

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 is evident 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. 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 P1900.16D), 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 111, drunk driving; and Article 134, writing checks without sufficient funds.
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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