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USMC | DRB | 2005_Marine | MD0500154
Original file (MD0500154.rtf) Auto-classification: Denied


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


ex-Pvt, USMC
Docket No. MD05-00154

Applicant’s Request
The application for discharge review was received on 20041020. 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 20050118. 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. “My discharge was mainly based on numerous minor offenses and I was only 1 year and some months From Getting out Honorably. ”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Applicant’s ltr to the Board, dtd October 7, 2004
Character reference, dtd October 4, 2004 (2 copies)
Character reference, dtd September 30, 2004
Character reference, dtd September 29, 2004
Academic grade strip, undated


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active:                            None                       HON
         Inactive: USMCR (J)               970521 - 970727  COG
Period of Service Under Review :
Date of Enlistment: 970728               Date of Discharge: 000606
Length of Service (years, months, days):

          Active: 02 10 07 (Accounts for lost time.)
          Inactive: None
Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 39
Highest Rank: Cpl                          MOS: 0121 (Personnel Clerk)

 Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: **                    Conduct: **

 Military Decorations: LtrApp (4)
Unit/Campaign/Service Awards: SSDR

 Days of Unauthorized Absence: (02) 000119-000120
         ** Not found in the record.
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 :

970519:  Initial enlistment contract documents admission of pre-service marijuana experimentation. Enlistment waiver was granted. Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
980402:  NJP for violation of UCMJ, Article 92: … willfully disobeyed order …
 Violation of UCMJ, Article 91: … was disrespectful …
 Awarded forfeiture of $150.00 per month for 2 months, and 15 days restriction and extra duties. Forfeiture of $150.00 per month for 1 month, and 15 days restriction and extra duties susp 3 mos. Not appealed.
980402:  Counseled for deficiencies in performance and conduct. [Disobeying an order.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
990420:  NJP for violation of UCMJ, Article 107: ... having personnel from supply to sign check out sheet, which was false …
 Violation of UCMJ, Article 108: … without proper authority … wrongfully disposed of …
Awarded forfeiture of $260.00 per month for 1 month, and 3 days restriction and extra duties. Not appealed.
990820:  Counseled for deficiencies in performance and conduct. [Failing to report to appointed place of duty.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
991222:  Counseled for deficiencies in performance and conduct. [Unauthorized absence and insubordinate conduct.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
000119:  Applicant to UA (AWOL).
000121:  Applicant from UA (AWOL).
000201:  NJP for violation of UCMJ, Article 86: … absent himself from his appointed place of duty …
 Violation of UCMJ, Article 92 (2 specs):
 Specification 1: … failed to obey a lawful verbal order …
Specification 2: … having knowledge of a lawful order … failed to obey the same …
 Awd red to PFC, E-2, forfeiture of $563.00 per month for 2 months, and 30 days in correctional custody. Correctional custody susp for 6 mos. Not appealed.
000313:  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 of a discreditable nature with military authorities during this enlistment, as evidenced by three adverse entries contained on your page 11, three nonjudicial punishments contained on your page 12.”
000314:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
000424:  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 characterization of service.

000502:  Commanding officer recommended discharge as determined by the administrative discharge board.
000601:  SJA review determined the case sufficient in law and fact.
000601:  GCMCA [Commander, Marine Corps Air Bases, Eastern Area] 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 separated from the Marine Corps on 20000606 with a general/under honorable conditions 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 record does not support the Applicant’s contention that his overall service would have been honorable. When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as honorable. A service characterization of under other than honorable conditions is warranted when the member’s conduct constitutes a significant departure of that expected of a United States Marine. It must be noted most Marines serve honorably; thereby, earning their honorable discharges. In fairness to those Marines, commanders and separation authorities are tasked to ensure the undeserving receive no higher a service characterization than is due. Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the Applicant’s enlistment. While he may feel his lack of maturity and a series of bad decisions were contributing factors to his misconduct, they do not mitigate the Applicant’s disobedience of the orders and directives regulating good order and discipline in the naval service. His service record is marred by award of non-judicial punishment (NJP) on three separate occasions for disobeying orders, disrespect, making false official statements, wrongful disposal of government property and unauthorized absence, which substantiates the misconduct for which he was discharged and demonstrated he was unsuitable for further service . No other service characterization could more clearly describe why the Applicant was discharged. An upgrade to honorable conditions would be inappropriate. Relief is not warranted.

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. 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 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. Evidence of continuing educational pursuits, a positive employment record, a drug-free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted. The Board was impressed with the Applicant’s efforts at continuing his education, but does not consider these accomplishments to be of sufficient nature to mitigate the Applicant’s misconduct.

 
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 P1900.16E), 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 86, unauthorized absence; Article 91, Insubordinate conduct ; Article 92, Failure to obey order ; Article 107, False official statements ; Article 108, Wrongful disposition of military property.

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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