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USMC | DRB | 2005_Marine | MD0500037
Original file (MD0500037.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD05-00037

Applicant’s Request
The application for discharge review was received on 20040927. The Applicant requested the characterization of service received at the time of discharge be changed to honorable. The Applicant requested a documentary record review. The Applicant did not list a representative on his DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041229. 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 – 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. “Please consider this very important issue.
When I was discharged Dec 7 th 1993, I was told that my discharge would automatically upgrade to honorable 6 months from my date of discharge. I was told this by Master Sgt. K_ in admin when I received my papers from him.

Now I am attempting to apply for a position with the North Carolina Highway Patrol. They informed me that my discharge must be upgraded to honorable before I can apply.

I have not had any arrests of convictions of any kind other than traffic violations.

Please consider this issue so that i may apply for a position as a State-Trooper with the North Carolina Highway Patrol.

Thank you for your consideration,
(signed)
W_ S. S_, Jr.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (2 copies)
Discharge Certificate, dtd 7 December

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active:                            None                       HON
         Inactive: USMCR (J)               920117 - 920414  COG

 Period of Service Under Review :
Date of Enlistment: 920415               Date of Discharge: 931207

 Length of Service (years, months, days):

         Active: 01 07 20                  Inactive: None

 Age at Entry: 21                          Years Contracted: 4

Education Level: 12                        AFQT: 61

 Highest Rank: LCpl       MOS: 6152 (Aircraft Hydraulic/Pneumatic
Mechanic)
Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.4 (4)                       Conduct: 4.3 (4)

 Military Decorations: LtrApp

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: 921116 - 921119

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

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

 Chronological Listing of Significant Service Events :

920811:  Counseled for deficiencies in performance and conduct. [Substandard physical performance.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920916:  NJP for violation of UCMJ, Article 86: … failed to go at the time prescribed …
 Awd forf of $205.00 per month for 1 month, and 14 days restriction and extra duties. Forf, rest and extra duty susp for 6 mos. Not appealed.
921116:  Applicant to UA (AWOL).
921119:  Applicant surrendered from UA (AWOL).
921204:  That portion of the NJP pertaining to 14 days restriction and extra duties is vacated.
921204:  NJP for violation of UCMJ, Article 86: UA 0501, 921116 to 0730, 921119.
 Violation of UCMJ, Article 92: … disobeyed a lawful written order …
Awd red to E-1, and 16 days restriction and extra duties. Red and 11 days restriction and extra duties susp for 6 mos. Not appealed.
930809:  Counseled for deficiencies in performance and conduct. [Unauthorized absence.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
931006:  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 the Applicant’s “involvement with military authorities during this enlistment.”
931006:  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 “involvement with military authorities during this enlistment.”

931007:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
931007:  Applicant conditionally waived his right to an Administrative Discharge Board contingent upon receiving a general discharge.

931018:  Counseled for deficiencies in performance and conduct. [Driving on a suspended license.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
931117:  SJA review determined the case sufficient in law and fact.

931117:  GCMCA [Commanding General, 2d Marine Aircraft Wing] 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 released from the Marine Corps on 19931207 with an under honorable conditions (general) discharge 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: The Applicant states he was told that after six months he could have his discharge upgraded. There is no law or regulation that authorizes discharges to be automatically upgraded after six months. The Board does not automatically upgrade a discharge after six months. Relief denied.

The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested in the issue. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. This issue does not provide a foundation upon which the Board can grant relief.

T here 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 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 request an upgrade of a less than honorable discharge. Evidence of continuing educational pursuits, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided in order to receive consideration for relief based on post-service conduct. The Applicant did not provided sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty. Relief denied.
 
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 additional documentation to support any claims of post-service accomplishments 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 P1900.16D), 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 [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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