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NAVY | DRB | 2004 Marine | MD04-01354
Original file (MD04-01354.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD04-01354

Applicant’s Request
The application for discharge review was received on 20040827. 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 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/INVOL DIS (BOARD WAIVED) (MISCONDUCT) MINOR DISP INF, authority: MARCORSEPMAN Par. 6210.2.




PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

1. “My records were not such as to warrant the discharge that I received. I believe that my discharge should be upgraded to honorable to fit my record.”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member – 1)
Letter of Employment dtd Aug 9, 2004
Character Reference ltr from R_ C_ Township secretary/supervisor, dtd Aug 17, 2004

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                931118 - 940206  COG

 Period of Service Under Review :
Date of Enlistment: 940207               Date of Discharge: 950517

 Length of Service (years, months, days):

         Active: 01 02 13 (Accounts for lost time)
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 40

 Highest Rank: PFC                          MOS: 3051 (Warehouse Clerk)

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.1 (5)                       Conduct: 3.4 (4)

 Military Decorations: None

 Unit/Campaign/Service Awards: Rifle Marksman Badge, NDSM, SSDR, CoA

 Days of Unauthorized Absence: 27

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

UNDER OTHER THAN HONORABLE CONDITIONS/INVOL DIS (BOARD WAIVED) (MISCONDUCT) MINOR DISP INF, authority: MARCORSEPMAN Par. 6210.2.

 Chronological Listing of Significant Service Events :

940731:  Unauthorized absence since 2200, 940731.

 940829:  From UA when apprehended by City Police, Lower Yoder, PA at 0730, 940827 and was delivered to military control at 1700, 940829.
940909:  Counseled for deficiencies in performance and conduct [unauthorized absence from your unit from 2200, 940731 – 0730, 940827]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940914:  NJP for violation of UCMJ, Article 86: Unauthorized absence 2200, 940731 – 0730, 940827 from SScol, MCSSS, MCB, Camp Lejeune.
         Award: Forfeiture of $416 pay per month for 2 months, restriction for 45 days. Not appealed.

941007:  NJP for violation of UCMJ, Article 86: On or about 941002 without authority fail to go at the times prescribed to her appointed place of duty to wit: Battalion Duty Officer, Bldg 502, 3dSupBn, 3dFssg for restriction muster.
         Award: Forfeiture of $194.00, extra duty for 14 days. Not appealed.

941019:  Counseled for deficiencies in performance and conduct [failed to report to the Battalion Officer of the Day for her required restriction musters – missed all musters on 940925]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

941019:  Counseled for deficiencies in performance and conduct [failed to report to Battalion Officer of the Day at the required time for restriction muster – was 50 minutes late for 0900 muster on 941009]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

941020:  Acknowledged eligibility but not recommended for promotion to PFC for the Nov 94 promotion period because of recent NJP.

941227:  NJP for violation of UCMJ, Article 86: On or about 941216, without authority, absent herself from her appointed place of duty, to wit: Supply Battalion Forced March at 0600, Camp Kinser, Okinawa, Japan and so remain absent until 1300 on or about 941216.
         Award: Forfeiture of $217.00, restriction and extra duty for 14 days. Not appealed.

950113:  Counseled for deficiencies in performance and conduct [continues to follow a pattern of misconduct by continually being UA from her appointed place of duty]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950208:  NJP for violation of UCMJ, Article 86: On or about 950119 without authority fail to go at the time prescribed to her appointed place of duty, to wit: Bldg 400, Storage Section of Supply Company, Camp Kinser.
         Award: Forfeiture of $427.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. Not appealed.
950328:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions as evidenced by four nonjudicial punishments and four adverse counseling entries on page 11.
950329:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

950403:  Commanding Officer, 3d Supply Battalion, recommended Applicant’s discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions. The factual basis for this recommendation was repeated misconduct, receiving four nonjudicial punishments and four adverse counseling entries on page 11 of her service record book.

950412:  SJA review determined the case sufficient in law and fact.

950418:  GCMCA [CG, 3d FSSG] advised the Commandant of the Marine Corps that Applicant's discharge was directed under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19950517 under other than honorable conditions 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).

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 four occasions for several periods of unauthorized absence. The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her 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 her service to her 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 her misconduct sufficient to warrant an upgrade to her discharge. Relief not warranted.

The Applicant is reminded that she remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of her 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.
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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