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USMC | DRB | 2005_Marine | MD0500309
Original file (MD0500309.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD05-00309

Applicant’s Request
The application for discharge review was received on 20041210. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. The Applicant requests a personal appearance hearing discharge review before a traveling panel closest to Phoenix, AZ or Goodyear, AZ. The Applicant did not list any representative on the DD Form 293. Subsequent to the application, the Applicant obtained representation by the Veterans of Foreign Wars.

In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington, D.C. Metropolitan area. The Applicant failed to respond by the deadline date to a letter requiring the applicant to notify the Naval Discharge Review Board of his intention to be present for the requested personal appearance hearing. Therefore, a documentary review was conducted and the applicant is not eligible for further review by this Board.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050713. 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 OTHER THAN HONORABLE CONDITIONS/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. To obtain a chance to reenlist into a National Guard unit in the state of Arizona”

“2. To have a chance to use my Montgomery GI Bill to learn and grow as a person”

“3. My past performance was due to my youth and lack of knowledge as a person and the service life. I have since then matured and become a responsible member of my community. I feel that my growth and knowledge could help with current and or future personal enlisting in the service of out country. The pattern of misconduct was due to lack of promotion and hazing in the unit prior to tail hook incident which I was not a part of but some personnel in my unit were. I fully believe that if I could have transferred out of my unit to a different one I would have been better no transferred was offered and request were put aside and not followed through with.”

Additional issue submitted by Applicant’s representative (VETERANS OF FOREIGN WARS):

4. “We ask that after your review of the evidence and the Applicants issues that you change the discharge as requested.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copies of Applicant’s DD Form 214, Member 4 (2)
Copy of Applicant’s DD Form 214, Member 1

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                880813 - 881226  COG

 Period of Service Under Review :
Date of Enlistment: 881227               Date of Discharge: 920824

 Length of Service (years, months, days):

         Active: 03 07 28
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 39

 Highest Rank: LCpl                         MOS: 6060

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.1 (11)                      Conduct: 3.8 (11)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR, NUC, SASM(4), KLM, Rifle Sharpshooter Badge

 Days of Unauthorized Absence: None

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

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

 Chronological Listing of Significant Service Events :

890921:  Counseled for deficiencies in performance and conduct. [Constantly failing room inspections, lack of attention to detail and repeat discrepancies of field day, also financial irresponsibility in writing bad checks to pay bills.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

900605:  Counseled for deficiencies in performance and conduct. [UA and belligerent taunting behavior.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
900703:  NJP for violation of UCMJ, Article 86: Failed to go at the time prescribed to remedial physical training muster at 0530, 900627.
 Awarded Reduction to E-2, restriction to the limits of MCAS Tustin, CA without suspension of regular military duties for 30 days, extra duties for 30 days. Not appealed.
901213:  NJP for violation of UCMJ, Article 107: Made a false official statement to Capt W___, by telling him that “My wall locker was broken into,” or words to that effect.
 Awarded Reduction to E-1 (suspended for 6 months), restriction to the limits of USS NEW ORLEANS without suspension of regular duties for 45 days, extra duties for 30 days. Not appealed.
910118:  Counseled concerning substandard PRO/CON marks of 4.0 Pro, 3.3 Con because of recent NJP.

910401:  Not recommended for promotion to LCpl for the month of April 1991 due to recent NJP.

910501:  Not recommended for promotion to LCpl for the month of May 1991 due to recent NJP.

910601:  Not recommended for promotion to LCpl for the month of June 1991 due to recent NJP.

920413:  Not recommended for promotion to Cpl for the month of May 1992 due to substandard performance and a recommendation for weight control.

920522:  Not recommended for promotion to Cpl for the month of June 1992 due to an inability to work within required MOS, overweight and slovenly appearance.

920615:  Not recommended for promotion to Cpl for the month of July 1992 due to assignment to weight control program, failure to achieve minimum score on the PFT, inability to work within required MOS.

920618:  Counseled for deficiencies in performance and conduct. [SNM has shown no improvement in the weight control program. After 2 months involvement, SNM had gained 2 pounds.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
920625:  NJP for violation of UCMJ, Article 86: UA 0700-0730, 920604; violation of UCMJ, Article 86: UA 0530-0725, 920616; violation of UCMJ, Article 92: Failure to obey the order to appear in Service A uniform at 0730, 920618.
 Awarded Reduction to E-2, forfeiture of $440.00 pay per month for 2 months, and extra duties for 45 days. Not appealed.
920630:  Applicant notified of intended recommendation for discharge by reason of pattern of misconduct with the least favorable characterization of service possible of under other than honorable conditions.
920706:  Applicant advised of rights and having elected to consult 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.
920707:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

920722:  SJA review determined the case sufficient in law and fact.

920729:  Commanding General, 2d Marine Air Wing 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 19920824 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. There is no law or regulation which provides that an unfavorable discharge may be upgraded based solely on an Applicant’s desire to reenlist. Further, since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

Issue 2. 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.

Issue 3. An under other than honorable conditions discharge 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 three retention warnings and three nonjudicial punishment proceedings for violations of Articles 86, 92 and 107 of the UCMJ. Violations of Article 92 are considered serious offenses. 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 Marine Corps and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

The Applicant contends that his problems in the Marine Corps can be attributed to his “youth and lack of knowledge as a person and the service life.” While he may feel that his immaturity was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

The Applicant implies that his misconduct was the result of hazing going on in his unit and his failure to be promoted. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was improperly or inequitable kept from promotion or the victim of hazing. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. However, even if the Applicant could substantiate his claims, it would neither amount to a justification nor to a defense for the Applicant’s own misconduct. Relief denied.

The NDRB is authorized 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. The Applicant did not provide any relevant documentation for the Board to consider. Relief denied.

Issue 4. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country. It must be noted that most Marines serve honorably and well and therefore earn honorable discharges. In fairness to those Marines, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due. Relief is not warranted.

The following if provided for the edification of the Applicant. The Applicant has exhausted his opportunities for review by the NDRB. The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.


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 92, failure to obey an order/regulation.

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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