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USMC | DRB | 2005_Marine | MD0500184
Original file (MD0500184.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD05-00184

Applicant’s Request
The application for discharge review was received on 20041110. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions and the reason for the discharge be changed to “adim separation.” The Applicant requests a documentary record review. The Applicant listed the Veterans of Foreign Wars as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050316. 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 and narrative reason of the discharge shall not change. The discharge shall remain: UNDER OTHER THAN 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. “An uothc is unfair see statement of character I Received before to my sep. board I made some Mistakes and I am still paying for them I have medical conditions and I would like to Receive Benefits. I Lost my Career (unreadable) USMC my Rank. The mistakes have not Reaceend I have Learned from Mistakes. I understand it was my fault I dont blame the USMC but I belive I have payed for the Mistakes enough I am just want what I deserve I have Recived 2 honorable Dischargeds. I was a good Marine I just made some costly mistakes that I am sorry for.”

 2. “My conduct and efficiency ratings/behavior and proficiency marks were mostly pretty good. [A92.O2]

I received awards and decorations. [A92.04]

I received letters of commendation. [A92.06]

My record of promotions showed I was generally a good servicemember. [A92.l2]

I was so close to finishing my tour that it was unfair to give me a bad discharge. [A92.18]

I had a prior Honorable Discharge. [A92.20]

I have been a good citizen since discharge. [A92.22]

My record of NJP’s/Article 15’s indicates only isolated or minor offenses. [A92.24]

My ability to serve was impaired because of marital and family problems. [A93.O8]

Financial problems impaired my ability to serve. [A93.l2]

The punishment I got was too severe compared with today’s standards. [A94.02]

The punishment I got at discharge was too harsh—it was much worse than most people got for the same offense. [94.06]

My discharge was based on many offenses, but they were mostly only minor offenses. [A94.l0]

My command abused its authority when it decided to discharge me and decided to give me a bad discharge. [A94.12]

I was being considered for a physical disability discharge and was unfairly denied one. [A99.14]

 I should have been given a medical discharge because I was not medically qualified to serve.”

Additional issues submitted by Applicant’s counsel/representative (VETERANS OF FOREIGN WARS):

3. “Propriety and Equity Issue(s): The applicant feels that his Other Than Honorable discharge is inequitable in the light of his prior faithful service.
Statement: In accordance with 32 CFR § 724, and SECNAVINST 5420.174D, the Veterans of Foreign Wars submits to the Naval Discharge Review Board (NDRB) the above issue and following statement in supplement to the Applicant’s petition.

The applicant served honorably as a Marine NCO prior to 2 incidents of theft where he was found guilty by reason of Special Court Martial. The applicant feels that his discharge is too harsh in light of his previous honorable service and requests that his OTH discharge be upgraded to Honorable.

The Veterans of Foreign Wars’ express purpose in providing this statement and any other submittals or evidence filed is to assist this applicant in the clarification and resolution of the impropriety or inequity raised. To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 USC § 1553, and set forth in 32 CFR § 724 and SECNAVINST 5420.174D.

This case is now respectfully submitted for deliberation and disposition.”
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: USMC              920630 - 960126  HON
                  USMC             960127 – 981221  HON
         Inactive: USMCR(J)                920424 - 920629  COG

 Period of Service Under Review :
Date of Enlistment: 981222               Date of Discharge: 010710

 Length of Service (years, months, days):
        
         Active: 02 06 20
         Inactive: None

 Age at Entry: 25                          Years Contracted: 4

 Education Level: 12                        AFQT: 48

 Highest Rank: Sgt                          MOS: 2131

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.1 (3)                       Conduct: 4.1 (3)

Fitness reports available through 19990331

 Military Decorations: None

 Unit/Campaign/Service Awards: GCM, RSB, LA (2)

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.3.

 Chronological Listing of Significant Service Events :

990108:  Counseled for deficiencies in performance and conduct. [Lapse in judgement by conducting recreational shooting in an unauthorized area.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990902:  Summary Court-Martial.
         Charge I. Violation of the UCMJ, Article 81.
         Specification 1. Did steal and sell to J&E Salvage Co. scrap metal and aluminum cans valued in excess of $100.00 of military property.
         Specification 2. Conspired with LCpl R_ to steal and sell scrap metal and aluminum cans to J&E Salvage Co. in excess of $100.00 of military property.
         Charge II. Violation of the UCMJ, Article 108.
         Specification. Did sell to J&E Salvage Co. scrap metal and aluminum cans valued in excess of $100.00 of military property.
         Charge III. Violation of the UCMJ, Article 121.
         Specification. Did steal scrap metal and aluminum cans valued in excess of $100.00 of military property.
         Findings. Guilty to all charges and specifications.
         Sentence. Reduced to Cpl.
         CA action: 990902. Approved and ordered executed.

991206:  Counseled for deficiencies in performance and conduct. [Failed PFT.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

991206:  Counseled for deficiencies in performance and conduct. [Failure to maintain minimum height and weight standards. Effective 991118, reassigned to the Remedial Physical Fitness Program for the second time.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010309:  Summary Court-Martial.
         Charge I. Violation of the UCMJ, Article 121.
         Specification. Theft of a money order worth $225.00.
         Findings. Guilty to the charge and specification.
         Sentence. Reduced to Pvt, restricted for 60 days, and forfeited $502.00.
         CA action: not found.
010313:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
010314:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
010320:  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 adverse Pg. 11 entries, 1 NJP, and 2 Summary Courts-Martial.

010516:  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 under other than honorable conditions.

010607:  SJA review determined the case sufficient in law and fact.

010614:  GCMCA [CG, 2d FSSG] 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 discharged on 20010710 under other than 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. 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 two summary courts-martial for stealing, conspiracy, and wrongful disposition of government property. The Applicant also received adverse counseling entries on other occasions. A Marine may be administratively separated when there is a pattern of misconduct which includes two or more discreditable involvements with civil and/or military authorities or two or more instances of conduct prejudicial to good order and discipline within one enlistment. Such a pattern may include both minor and more serious infractions. No other narrative reason more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation. 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 or under honorable (general) characterization of service. An upgrade is inappropriate. Relief to the characterization of service and narrative reason for separation is 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.
Issue 2. The Applicant’s record clearly reflects his disregard for the requirements of military discipline and demonstrated that he was unfit for further service. The evidence of record, to include the issues submitted by the Applicant, does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

Issue 3. The Applicant’s prior honorable enlistments do not mitigate his final characterization of service to a degree that would warrant an upgrade. The Applicant’s discharge characterization accurately reflects his service to his country for the enlistment under review. The discharge was proper and equitable. 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. 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 P1900.16E), 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 81, conspiracy; Article 108, wrongful disposition of military property; Article 121, larceny.
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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