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USMC | DRB | 2005_Marine | MD0500332
Original file (MD0500332.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD05-00332

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 documentary record discharge review. The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050324. 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 – Minor disciplinary infractions (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.2.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“1. My average conduct and efficiency ratings were good.

2. My record of promotions shows that I was generally a good service member.

3. Clemency is warranted because it is an injustice for me to continue to suffer the adverse consequences of a bad discharge”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None were submitted

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                         880722 - 890710  COG

 Period of Service Under Review :
Date of Enlistment: 890711               Date of Discharge: 920806

 Length of Service (years, months, days):

         Active: 03 00 26         Does not exclude lost time
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 81

 Highest Rank: LCpl                         MOS: 0311

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.1 (9)              Conduct: 3.9 (9)

 Military Decorations: None

 Unit/Campaign/Service Awards: REB (2), NUC, NDSM

 Days of Unauthorized Absence: 21

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct-Minor disciplinary infractions (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.2.

 Chronological Listing of Significant Service Events :

901001:  NJP for violation of UCMJ, Article 92:
 Specification: Derelict in the performance of duties as the driver on 2305, 900923 by racing with another mobile vehicle and exceeding the speed limit inside the limited area.
Awarded forfeiture of $210.00 per month for 1 month, restriction and extra duties for 14 days. Not appealed.
920309:  NJP for violation of UCMJ, Article 92: Violated CoO P8126.1 Par 9002.4 by not being attentive to the slippery road conditions which resulted in a vehicle accident on 920226.
         Awarded forfeiture of $225 per month for 1 month, restriction and extra duty for 14 days. Not appealed.
920309:  Counseled for deficiencies in performance and conduct. [Violations of the UCMJ.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

 920511:  Applicant to unauthorized absence 0601, 920511.

 920521:  Applicant from unauthorized absence 1310, 920521 (10 days/surrendered).
920522:  Applicant to unauthorized absence 0601, 920522.

 920602:  Applicant from unauthorized absence 1300, 920602 (11 days/surrendered).
920604:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86 (2 specs):
         Specification 1: Absent from unit on 0601, 920511-1310, 920521.
         Specification 2: Absent from unit on 0601, 920522-1300, 920602.
          Finding: to Charge I and the specifications thereunder, guilty.
          Sentence: Forfeiture of $523.00, confinement for 30 days, reduced to E-1.
         CA action 920604: Sentence approved and ordered executed.

920604:  Applicant found fit for confinement.

920604:  Applicant to confinement.

920629:  Applicant notified of intended recommendation for discharge by reason of misconduct due to minor disciplinary infractions. The least favorable characterization of service that you may receive is under other than honorable conditions.
920629:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

920629:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions. The factual basis for this recommendation was Applicant’ s summary court-martial conviction on 920604 and your two nonjudicial punishments which were conducted on 901001 and 920309. Applicant was appropriately counseled , however, he failed to take corrective action.

920724:  SJA review determined the case sufficient in law and fact.

920727:  GCMCA [Commanding General, 2d Marine Division, FMF, Camp Lejeune, NC] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19920806 under other than honorable conditions for misconduct due to minor disciplinary infractions (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’s conduct evaluation average of 3.9, 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 characterization of service. An upgrade is inappropriate on this basis. Relief denied.

Issue 2. 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. The Applicant’s service was marred by award of nonjudicial punishment (NJP) on two occasions for disobedience of orders and one summary court-martial for unauthorized absence. The evidence of record 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 discharge characterization accurately reflects his service to his country. Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question. No such inequity or impropriety occurred 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. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that 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 upgrade a less than honorable discharge. Evidence of continuing educational pursuits, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that may be provided to receive consideration for relief, based on post-service conduct.

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 P1900.16D), 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 86, unauthorized absence for more than 30 days; and Article 92, disobey a lawful order.
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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