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USMC | DRB | 2005_Marine | MD0500035
Original file (MD0500035.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD05-00035

Applicant’s Request
The application for discharge review was received on 20040930. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant did not list any representative on the DD Form 293. The Applicant requests a personal appearance hearing before the board in the Washington, D.C. Metropolitan area. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.
Decision

A documentary review was conducted in Washington, D.C. on 20050107. 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: GENERAL (UNDER HONORABLE CONDITIONS)/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 request an upgrade of discharge because I’m looking to further my education. I’ve been out of the military for 4 years. Since my discharge I have learned the value of life. I’m currently operating my own internet company. The reason for my discharge, was for to many bad checks. I was young at the time. Never had any one to show how to balance my check book. When I finally got help, it was to late. Since my discharge, I have learn how to balance money and the corp value.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                960130 - 960813  COG

 Period of Service Under Review :
Date of Enlistment: 960814               Date of Discharge: 000113

 Length of Service (years, months, days):

         Active: 03 04 06
         Inactive: None

 Age at Entry: 17                          Years Contracted: 4

 Education Level: 12                        AFQT: 42

 Highest Rank: LCPL                MOS: 2531

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.0 (8)                       Conduct: 3.7 (8)

 Military Decorations: None

 Unit/Campaign/Service Awards: Sharpshooter Rifle Badge, GCM, SSDR, LOA, MM

 Days of Unauthorized Absence: 24

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

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

 Chronological Listing of Significant Service Events :

971126:  NJP for violation of UCMJ, Article 86:
 Specification: From 0415 to 0505 on or about 971124 failure to go to time prescribed to his appointed place of duty.
Award: Forfeiture of $244.00 pay per month for 1 month (suspended for 6 months). Not appealed.
971230:  Counseled for deficiencies in performance and conduct [Violations of the UCMJ resulting in nonjudicial punishment proceedings. Failure to abide by the Article 86, specifically being UA from appointed place of duty. Failure to demonstrate sound judgment and maturity.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980618:  Counseled for deficiencies in performance and conduct [Financial responsibilities.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990304:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 91:
         Specification 1: On or about 980917, fail to obey lawful order from NCO.
         Specification 2: On or about 980917, fail to obey order from NCO.
         Charge II: violation of the UCMJ, Article 123a:
         Specification: From on or about 971216 to 980512 wrongfully utter checks that would not have sufficient funds or credit.
          Finding: to Charge I and all of the specifications thereunder, guilty. To Charge II and the sole specification thereunder, guilty.
          Sentence: Reduced to E-1, confinement for 30 days.
         CA action 990304: Sentence approved and ordered executed. Forwarded to the Review Officer, LSSS for legal review under Art 64(a), UCMJ.

990819:  Counseled for deficiencies in performance and conduct. [Financial responsibilities.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
991103:  NJP for violation of UCMJ, Article 86 (3 Specs):
 Specification 1: On or about 0700, 990827, fail to go to appointed place of duty, NBC locker.
Specification 2: On or about 0200, 990827, fail to go to appointed place of duty, Bn hike.
Specification 3: On or about 0700 990830, fail to go to appointed place of duty, Co formation.
Violation of UCMJ, Article 91:
Specification: On or about 0700, 990818 wrongfully disobey a lawful order from NCO.
Award: Forfeiture of $479.00 pay per month for 2 months (suspended 6 months), restriction and extra duties for 45 days. Not appealed.
991119:  Applicant notified of intended recommendation for discharge with a least favorable characterization of under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
991119:  Applicant advised of rights and having not consulted with counsel certified under UCMJ Article 27(b), elected to appear before an Administrative Discharge Board.
991216:  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 with a general (under honorable conditions). The Board also recommended unanimously that the discharge not be suspended.

991119:  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 the Applicant’s Company level NJP of 971126 for a violation of Article 86, Battalion level NJP on 991103 for violation of Article 86 x 3 and 91, and finally summary court-martial on 990304 for violation of Articles 91 and 123a.

000107:  Commanding General, 1 st Marine Division (Rein) directed the Applicant's discharge with a general (under 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 20000113 with a general (under 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: Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question. No such impropriety or inequity is evident during the Applicant’s enlistment. When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. A general discharge is warranted for behavior not sufficiently meritorious to warrant an honorable discharge. T he Applicant’s service was marred by nonjudicial punishment proceedings for violations of UCMJ Article 86, failure to go to appointed place of duty, and Article 91, failure to obey a lawful order. Additionally, the Applicant was found guilty at summary court-martial for violations of UCMJ Article 91, failure to obey a lawful order and 123a, uttering worthless checks The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the United States Marine Corps. Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service. Relief is not warranted.
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 naval service. The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided any documentation for the Board to consider. Relief denied.

The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board. 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. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge. The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time. 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 P1900.16E), effective 31 Jan 97 until 31 Aug 01.

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 [e.g., Article 86, unauthorized absence for more than 30 days].
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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