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NAVY | DRB | 2004 Marine | MD04-01353
Original file (MD04-01353.rtf) Auto-classification: Denied


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


ex-Pvt, USMC
Docket No. MD04-01353

Applicant’s Request
The application for discharge review was received on 20040824. 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.

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. “ITEM 6: The discharge was inequitable because of two-isolated incidents in 36 months of service with no other adverse action. Both incidents precipitated from a failing marriage. My records prior to these incidents should be considered for my current status. I am including for your review: Honorable Discharge from National Guard, DD form 214 showing Army Service Ribbon, National Defense Service Medal, Sea Service Deployment Ribbon and Rifle Expert Badge. Also, a police clearance and a character reference from my church are included for review.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 from USMC
Applicant’s DD Form 214 from ARNG
 ARNG discharge certificate
Criminal record check
Character reference

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
 Inactive: ARNG            840421 - 890507  HON
 USMCR(J)                 890421 - 890507  COG
Period of Service Under Review :
Date of Enlistment: 890508               Date of Discharge: 920410

 Length of Service (years, months, days):
         Active: 02 11 03
          Inactive: None
Age at Entry: 23                          Years Contracted: 4

Education Level: 12                        AFQT: 84
Highest Rank: LCpl                         MOS: 6492

 Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: 4.5 (11)                      Conduct: 4.2 (11)

 Military Decorations: None
Unit/Campaign/Service Awards: NDSM, SSDR, REB

 Days of Unauthorized Absence: None
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 Events:
900220:  NJP for violation of UCMJ, Article 92 (2 specs):
                  Specification 1: Go on liberty without a liberty card.
 Specification 2: Fail to return with his ID card as directed at 2300, 900217.
 Awarded forfeiture of $200.00 per month for 2 months, restriction for 45 days, reduction to PFC (reduction suspended for 6 months). Not appealed.
910603:  Counseled for deficiencies in performance and conduct. [Writing 37 checks with insufficient funds.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
910701:  NJP for violation of UCMJ, Article 123a: Write 37 checks with a total face value of $5286.92 with insufficient funds.
 Awarded forfeiture of $300.00 per month for 2 months, restriction for 45 days, reduction to PFC. Not appealed.
911101:  Counseled for deficiencies in performance and conduct. [On 911021 empty alcoholic containers were found in your room at the BEQ.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
920127:  Counseled for deficiencies in performance and conduct. [Arrest on 920124 for DWI by reason of refusal.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
920221:  Summary Court-Martial.
 Charge I: Violation of UCMJ, Article 95: Resisted apprehension on 920124.
 Charge II: Violation of UCMJ, Article 111: Operated a 1989 Mustang in a reckless manner on 920124.
Finding: Guilty to all charges.
 Sentence: To be reduced to Pvt, 30 days restriction, forfeiture of 2/3 pay for one month.
 CA action: 920227. Approved and ordered executed.
920228:  NJP for violation of UCMJ, Article 123a: Write 3 false checks to MWR for a total value of $530.00.
 Awarded extra duties for 45 days. Not appealed.
920303:  Counseled for deficiencies in performance and conduct. [Pattern of misconduct.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
920306:  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 three NJPs and other adverse page 11 entries.
920306:  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.
920306:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

920401:  SJA review determined the case sufficient in law and fact.

 920401:  GCMCA [CG, 2d MAW] 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 19920410 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 three occasions and one summary court-martial for writing numerous worthless checks, disobeying lawful orders, reckless driving, and resisting apprehension. 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. 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. 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 P1900.16D), 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 92, disobey a lawful order; Article 95, resist apprehension; Article 111, reckless operation of a vehicle; and Article 123a, worthless checks.
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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