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NAVY | DRB | 2004 Marine | MD04-01321
Original file (MD04-01321.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD04-01321

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 general/under honorable conditions. The Applicant requests a documentary record discharge review. The Applicant did not list any representative on the DD Form 293. The Executive Secretary, NDRB, contacted the Applicant concerning missing information from his application (date of discharge). At that time, the Executive Secretary informed Applicant that he was approaching the 15 year point for review by this Board and offered the Applicant a personal appearance hearing before the Board in the Washington, D.C. Metropolitan area. The Applicant stated he could not afford to come for a hearing.

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-Pattern of misconduct (administrative discharge board required but waived), 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 believe that my time in the Marine Corps was spent honorably and I have taken steps to correct the grave error in my judgment. I have documentation that shows my good conduct while in the Marine Corps and the actions I have taken after my discharge.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
DD Form 4/2, Enlistment into Army National Guard on April 12, 2004
DD Form 4/1, Enlistment/Reenlistment Document
One page from Applicant’s service record
Character reference, dated April 8, 2004
Statement from Applicant, dated April 6, 2004

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                860313 - 861111  COG

 Period of Service Under Review :
Date of Enlistment: 861112               Date of Discharge: 890808

 Length of Service (years, months, days):

         Active: 02 08 27
         Inactive: None

 Age at Entry: 18                          Years Contracted: 6

 Education Level: 12                        AFQT: 55

 Highest Rank: Cpl                          MOS: 0311

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (8)                       Conduct: 4.1 (8)

 Military Decorations: None

 Unit/Campaign/Service Awards: REB (2), SSDR

 Days of Unauthorized Absence: 30

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct-Pattern of misconduct (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.3.

 Chronological Listing of Significant Service Events :

870518:  Applicant to unauthorized absence 0701, 870518.

870521:  Applicant from unauthorized absence 1530, 870521 (3 days/surrendered).

870527:  NJP for violation of UCMJ, Article 86:
 Absent himself from place of duty on 0701, 870518-1530, 870521.
Awarded forfeiture of $178.00 per month for 1 month, restriction and extra duties for 14 days. Not appealed.
870622:  Counseled for deficiencies in performance and conduct. [Poor performance, lack of discipline.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
881020:  Counseled for deficiencies in performance and conduct. [Not being at appointed place of duty. Demonstrating poor job performance as a non-commissioned officer.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
881027:  NJP for violation of UCMJ, Article 86 (5 specs):
 Absent from appointed place of duty on 1300-1315, 881002, 0400-0405, 881007, 0400-0445, 881020, 1500-1545, 881021, 1415-1700, 881022, to wit: 53 Area Mess Hall.
Awarded restriction and extra duties for 30 days, reduction to E-3. Not appealed.
890228:  Applicant to unauthorized absence 0630, 890228.

 890326:  Applicant from unauthorized absence 2100, 890326 (27 days/surrendered).
890502:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86:
         Specification: Unauthorized absence from 0630, 890228 to 2100, 890326.
          Finding: to Charge I and the specification thereunder, guilty.
          Sentence: Forfeiture of $461.00, restriction for 60 days, reduction to Pvt.
         CA action 890502: Sentence approved and ordered executed.
890628:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
890628:  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.

890628:  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 two nonjudicial punishments and one summary court-martial.

890710:  SJA review determined the case sufficient in law and fact.

890712:  GCMCA [Commanding General, 1 st Marine Division (Rein) FMF] directed the Applicant's discharge under other than 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 19890808 under 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. A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a Marine. T he Applicant’s service was marred by award of nonjudicial punishment (NJP) on two occasions and one summary court-martial for several periods of unauthorized absence. 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 or under honorable (general) characterization of service. An upgrade is inappropriate. 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 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. 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 may also petition the Board for Correction of Naval Records (BCNR) at 2 Navy Annex, Washington, D.C. 20370-5100 to review his service record for a change to his characterization of service.










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.
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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