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NAVY | DRB | 2004 Marine | MD04-01414
Original file (MD04-01414.rtf) Auto-classification: Denied


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


ex-LCpl, USMC
Docket No. MD04-01414

Applicant’s Request
The application for discharge review was received on 20040902. 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 HONORABLE CONDITIONS (GENERAL)/MISCONDUCT, 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 received a General Under Honorable Conditions discharge for a pattern of misconduct. I received this because I received office hours for the following offenses, sleeping on duty and paying a government credit card bill late. I served almost seven years in the Marine Corps and they threw me out just for that. It was personal plain and simple. At the time I was discharged there were three other Marines on the base who had received two office hours and they were given an honorable discharge. That does not seem fair seem fair to me. I gave my country seven years. I gave the Marine Corps seven years of my life and because I feel asleep on duty one time and because I paid a bill late I am being punished for the rest of my life. Second of all I have a medical problem that does not allow me to sleep threw the night. I even had surgery to fix this problem. The command went out of their way to ignore this fact. Also upon my discharge I questioned my Tap instructor.(the class you receive when you are being discharged) I asked my instructor will I receive my benefits with this type of discharge and he told me yes. And then when I went to use my GI Bill they told me that I did not rate that because of my discharge. I feel that the command lied to me about this because I was going to request mast to the General at MCLB Albany and they did not want that. So they lied to me to get me off the base. Furthermore I requested a personal appearance before the commanding officer of the base and I was denied that right. I know that I made some mistakes hut I also know that the punishment must fit the crime and to me falling asleep “one time” in seven years and paying a credit card bill late does not seem worthy of a General Under Honorable Conditions discharge. Especially since I had a medical problem which I was told by Navy Medical personal is the reason why I sometimes fall asleep and don’t even know it. Also I was lied to by the command to get me off the base because I was trying to request mast so to shut me up they lied to me. Also when I was discharged their were three other marines who had two NJP’s just like me and they all recieved honorable discharges. What makes that even worse was that they were first termers. I was on my second enlistment. And they were treated way better than I was. If that is not personal then I don’t know what is. In closing I would just like to thank you for reviewing my case and I would just like to say that I am not saying I had a perfect career in the military. I made a few mistakes and I know that. But right now I am a full-time college student and my wife is in the United States Air Force and we are trying to move on with our lives. But because of lies and the deception of the command I am not receiving all of my benefits which I was told I would. They knew that I would request mast and they were trying to avoid that. So they lied to me and got me off their base as soon as possible. That does not seem fair to me especially since I gave seven years of my life to my country. Also I have included copies of all the paper work that I have submitted prior to this date. I have also included medical paperwork and a personal statement. I just feel that I was treated unfairly by certain personnel in the command at HQBN MCLB Barstow CA 92311. I know I did not deserve the discharge I received. I have a medical condition and I am currently receiving disability from the government for various injuries that I have acquired during my time in the Marine Corps. Someone who had sacrificed his body, time and soul to his country should not be treated like this. Thank you for all of your time .”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (3 copies)
Four pages from Applicant’s medical record
Employment reference letter from S_ M_
Employment reference letter from B_ Z_
Two college semester grade reports
College Honor’s List notification
Three letters from Applicant

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              960702 - 000504  HON
          Inactive: USMCR(J)                950731 - 960701  COG
Period of Service Under Review :
Date of Enlistment: 000505               Date of Discharge: 030501

 Length of Service (years, months, days):
         Active: 02 11 28
          Inactive: None
Age at Entry: 22                          Years Contracted: 3

 Education Level: 12                        AFQT: 48
Highest Rank: Sgt                          MOS: 4066

 Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: 4.6 (7)                       Conduct: 4.4 (7)

 Military Decorations: None
Unit/Campaign/Service Awards: NDSM, GCM, OSR, MUC, LA, REB

 Days of Unauthorized Absence: None
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER HONORABLE CONDITIONS (GENERAL)/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.3.

 Chronological Listing of Significant Service Events :

001023:  Counseled for deficiencies in performance and conduct. [Unauthorized female guest overnight in barracks room.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
020415:  NJP for violation of UCMJ, Article 123a: Drew a worthless check; violation of UCMJ, Article 134: Failed to pay debt.
 Awarded restriction for 45 days (suspended for 6 months). Not appealed.
020506:  Vacated suspended punishment from NJP dated 020415.
020611:  Counseled for deficiencies in performance and conduct. [Administrative reduction to Cpl. Erroneously promoted to Sergeant while pending adjudication of charges stemming from an alcohol related incident on 010908.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
020625:  Counseled for deficiencies in performance and conduct. [Failed to run a PFT for the first half of CY02.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
030214:  Counseled for deficiencies in performance and conduct. [UA for ninety minutes on 030114, UA for seventy-five minutes on 030115, and insubordinate to GySgt D_.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
030305:  NJP for violation of UCMJ, Article 92 (2 specs):
 Specification 1: Fell asleep in the issue room on 020816.
 Specification 2: Failed to change the sling on your rifle, after ordered to do so.
 Awarded forfeiture of $764.00, restriction for 30 days, reduction to LCpl. Not appealed.
030327:  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 adverse entries in the service record book.
030328:  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 and to submit a statement.
030421:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

030423:  GCMCA [CO, Marine Corps Logistics Base Barstow] 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 20030501 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).
Issue 1. When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as honorable. 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. The Applicant’s service was marred by adverse counseling entries and award of nonjudicial punishment (NJP) on two occasions (with one suspended punishment vacated) for failure to pay debt, writing a worthless check and disobedience of orders. 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 Board found no indication that he was denied any rights regarding his administrative separation. The Applicant’s claim that he was lied to, treated unfairly by his command and that his medical condition should excuse his misconduct does not refute the presumption that his discharge was proper and equitable. The evidence of record, to include the documentation submitted by the Applicant, does not demonstrate that he was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.
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 Applicant’s discharge characterization accurately reflects his service to his country for 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 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. 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 P1900.16F), effective 01 Sep 2001 until Present.

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 123a, worthless check; and Article 134: failure to pay debt.
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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