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USMC | DRB | 2005_Marine | MD0500329
Original file (MD0500329.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD05-00329

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 honorable. The Applicant requests a personal appearance hearing discharge review before a traveling panel closest to Jacksonville, NC. The Applicant did not list any representative on the DD Form 293. 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 National Capital Region. The NDRB also advised that the Board first conducts a documentary review prior to any personal appearance hearing.


Decision

A documentary discharge review was conducted in Washington, D.C. on 20050524. 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. “Dear Board, and Decision Makers,
I T___ R__ B___ I’m writing to request a change in my discharge. I feel that I deserve to have an honorable discharge. I’ve written to you all twice. Each offense that I was charged for was petty and some unjustifiable. When I was initially informed that I was getting out of the Marine Corps I was told that I was receiving a dishonorable discharge for a pattern of misconduct. I took it upon myself to fight this I went before an admin separation board. I fought this discharge I even proved that my command was harassing me. The verdict form the jury was that my command was harassing me and I was given an general under honorable circumstances discharge with the guarantee of all my benefits such as MGI Bill VA loans etc. I was also informed that after 6 months my discharge would automatically be upgraded to an Honorable. All I’m asking is for my record to be reviewed so I can receive my MGB Bill. I recently went to college and found out because I got out on a general under honorable circumstance that I could not receive my MGI Bill. I feel I have worked hard for that. Now I begging for a review of my record. I’ve attached some cases that I excepted NJP for that now since I know I little more I wished I would have fought. Please review SRB! T___ B___”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
3 letters of explanation (3 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                950331 - 960303  COG

 Period of Service Under Review :
Date of Enlistment: 960304               Date of Discharge: 990119

 Length of Service (years, months, days):

         Active: 02 10 16
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 11                        AFQT: 33

 Highest Rank: PFC                          MOS: 3531

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.8 (6)                       Conduct: 3.6 (6)

 Military Decorations: None

 Unit/Campaign/Service Awards: RMB

 Days of Unauthorized Absence: None

 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 :

960802:  NJP for violation of UCMJ, Article 86: Was on or about 2100, 960723 absent without leave and did remain so absent until 2340, 960723.
 Awarded forfeiture of $188.00 pay per month for 1 month, restriction and extra duties for 14 days. Not appealed.
970311:  Counseled for deficiencies in performance and conduct. [For failing the semi-annual PFT test on 961217.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970311:  Counseled for deficiencies in performance and conduct. [Due to the failure of your 2 nd make up PFT required by the sections Remedial Physical Training program.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

971222:  Counseled for deficiencies in performance and conduct. [Frequent involvement with military authorities and minor incidents prejudicial to good order and discipline. Specifically on or around 971211 you failed to follow company regulations by driving a 5ton truck through the traffic circle. You have been late for remedial PT many times and on 971219 at 1100 you ran a PFT for score, you failed the PFT with a run time of 34:11.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
980105:  NJP for violation of UCMJ, Article 86: UA from remedial PT on 971217, to wit: Bldg 1780, CLNC, MCB, Trk CO Maintenance, HQBN, violation of UCMJ, Article 92: In that SNM, on board CLNC, while in the field, on or about 1300, 971217, was disrespectful in language toward Cpl S___, who is known to be an NCO to SNM.
 Awarded forfeiture of $505.00 pay per month for 2 months (suspended for 6 months), restriction and extra duties for 30 days. Not appealed.
980120:  Counseled for deficiencies in performance and conduct. [Failure to meet Marine Corps weight standards, specifically being overweight by 38lbs.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980610:  Counseled for deficiencies in performance and conduct. [Failure to be financially responsible. For the past two months you have received two court dates for not paying bills, while also being delinquent in making car payments. SNM also currently on the weight control program since Oct 97 with no significant improvement, she is 38 lbs over her maximum weight. SNM has been late to work on many different occasions and her attitude during this period is unsatisfactory.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
980729:  NJP for violation of UCMJ, Article 109: In that SNM did, on Highway 17 North, Jacksonville, North Carolina, on or about 1020, 980309, through neglect, damage a privately owned vehicle with a government vehicle. The amount of said damage being in the sum of about $1000.00.
 Awarded forfeiture of $519.00 pay per month for 2 months (1 month suspended for 6 months), restriction and extra duties for 30 days. Not appealed.
980811:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
980811:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

980903:  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 respondent’s three nonjudicial punishments, and two disciplinary page 11 counselings.

981106:  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 a general (under honorable conditions) discharge.

981218:  SJA review determined the case sufficient in law and fact.

990105:  Commanding General, 2d Marine Division, directed the Applicant's discharge 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 19990119 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. A general 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 five retention warnings and three nonjudicial punishment proceedings for violations of Articles 86, 92 and 109 of the UCMJ. The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her willful failure to meet the requirements of her contract with the Marine Corps and falls far short of that required for an upgrade of her characterization of service. Relief is not warranted.

The Applicant contends, “I took it upon myself to fight… I went before an admin separation board. The verdict from the jury was that my command was harassing me…” The documentation and statements provided by the Applicant were not sufficient to overturn the presumption of regularity. The Applicant received three nonjudicial punishments for infractions of the UCMJ and an administrative separations board determined that she committed misconduct due to a pattern of misconduct and that the misconduct warranted separation with a characterization of service as general under honorable conditions. Relief denied.

The Board found no indication in the record that the Applicant’s separations board promised her a “guarantee of all [her] benefits.” 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 states that she was told her discharge would be upgraded after six months. There is no law or regulation that authorizes a discharge to be automatically upgraded after six months. A former service member has 15 years, from the date of discharge, to petition the Board for consideration of an upgrade. 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. 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 92, failure to obey an order or 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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