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USMC | DRB | 2005_Marine | MD0500354
Original file (MD0500354.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD05-00354

Applicant’s Request
The application for discharge review was received on 20041215. The Applicant requested the characterization of service received at the time of discharge be changed to general/under honorable conditions. 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 20050210. 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, authority: MARCORSEPMAN Par. 6210.3.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

 1. “Employment reasons. Divorce was finalized. Child custody was awarded to me. Former spouse was the primary problem to my pattern of misconduct discharge. Law Enforcement is in my future and I have lived in good standing with the civilian laws for over two years of military discharge. I am requesting that my records be reviewed and acknowledged that the primary problem during my enlistment has been resolved .”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Final Judgment and Decree for Divorce

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active:                            None                       HON
         Inactive: USMCR (J)               000727 - 010128  COG

 Period of Service Under Review :
Date of Enlistment: 010129               Date of Discharge: 020524

 Length of Service (years, months, days):

         Active: 01 03 26 (Does not account for lost time.)
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

Education Level: 12                        AFQT: 37

 Highest Rank: LCpl                         MOS: 0311 (Rifleman)

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.5 (5)                       Conduct: 3.5 (5)

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 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 :

011109:  NJP for violation of UCMJ, Article 92: … having knowledge of a lawful order … did fail to obey …
 Awarded forfeiture of $283.00 per month for 1 month, and 14 days restriction and extra duties. Forfeiture and 6 days restriction and extra duties susp for 6 mos. Not appealed.
011119:  Counseled for deficiencies in performance and conduct. [Lack of financial responsibility. Writing bad checks.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
011119:  NJP for violation of UCMJ, Article 134: … having been restricted … did break said restriction.
 Awarded forfeiture of $283.00 per month for 1 month, and 14 days restriction and extra duties. Vacate suspension form NJP held on 011109. Not appealed.
011119:  Counseled for deficiencies in performance and conduct. [Breaking restriction.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
020129:  Counseled for deficiencies in performance and conduct. [UA.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
020219:  NJP for violation of UCMJ, Article 86: … without authority, absent himself from his place of duty …
 Awarded forfeiture of $304.00 per month for 1 month, and 14 days restriction and extra duties. Forf and 7 days restriction and extra duties susp for 6 mos. Not appealed.
020412:  NJP for violation of UCMJ, Article 87: … through neglect miss the movement of Battalion Landing Team …
 Violation of UCMJ, Article 86: … did, on or about 1330, 020328, without authority, absent himself … and did remain so until on or about 0900, 020401.
Awd red to PFC/E-2, forfeiture of $619.00 per month for 2 months, and 45 days restriction and extra duties. Forf susp for 6 mos. Not appealed.
020412:  Counseled for deficiencies in performance and conduct. [UA & Missing movement.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020425:  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 “constant disciplinary infractions.”
020425:  Applicant advised of rights and having consulted 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.

020426:  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 Applicant’s “constant disciplinary infractions.”

020515:  SJA review determined the case sufficient in law and fact.

020520:  GCMCA [Commanding General, 1 st Marine Division (Rein)] 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 20020524 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: The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested in the issue. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. In the Applicant’s case, the Board discovered no impropriety or inequity and considers his discharge to be proper and equitable. For the Applicant’s edification, this issue does not serve to provide a foundation upon which the Board can grant relief.

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 f ormer spouse was the primary problem to (his) pattern of misconduct discharge” and “the primary problem during (his) enlistment has been resolved” because his divorce is finalized, this does not mitigate the Applicant’s disobedience of the orders and directives regulating good order and discipline in the naval service. The record is devoid of any evidence the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. His service record is marred by award of nonjudicial punishment (NJP) on four separate occasions for unauthorized absence, missing movement, failure to obey orders and breaking restriction, substantiating his pattern of misconduct and demonstrating he was unsuitable for further service. It must be noted that most Marines serve honorably; thereby, earning 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. An upgrade to general (under honorable conditions) would be inappropriate. Relief denied.

 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. However, 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 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, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct. At this time, the Applicant has not provided sufficient documentation of good character and conduct to mitigate his misconduct while on active duty. Relief denied.
 
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 P1900.16F), effective 01 Sep 2001 until Present.

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 87, Missing movement ; Article 92, Failure to obey orders ; Article 134, Breaking restriction.
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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