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USMC | DRB | 2005_Marine | MD0500380
Original file (MD0500380.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD05-00380

Applicant’s Request
The application for discharge review was received on 20041227. The Applicant requested the characterization of service received at the time of discharge be changed to honorable. 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. 6210.6.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


 Issues, as stated

 Applicant’s issues, as stated on the application:

 1. “I feel my discharge and punishment were too harsh for the conditions. I had 3 separate AWOL charges. On the first, I called in sick and this was dropped. On the 2 nd , I was on extended elave with my family and trying to pick up a car I purchased. I called in to my OIC and told him that I was stranded without a car due to mine being wrecked and the inability to pick up my new one. He told me that he didn’t care and I was in trouble. Since I was already in trouble, I chose to stay and get my car before returning. When I returned, I was told I would be punished repeatedly for this. I was given three back to back 24 hour duties and told I would not be allowed any more leave. Due to my service connected nervous condition, I could not handle this situation and went AWOL for 29 days. I returned and did my time, but feel that the discharge did not warrant an UOC. I was told by several people throughout the discharge process that that OUC is usually reserved for convicted felons such as drug abuse, theft, etc, and that my AWOL did not warrant this low a discharge.

I have not been in trouble since my discharge and have attached several character letters in support of this request.

I would very much like to serve my country in another capacity as National Guard or Reserves and would request this discharge be upgraded so that I can do that.

Thank you for this consideration .”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (2 copies)
Criminal Records check, dtd 16 Nov 04
Character reference, dtd August 21, 2004
Character reference, dtd September 17, 2004

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active:                            None                       HON
         Inactive: USMCR (J)               010330 - 010507  COG

 Period of Service Under Review :
Date of Enlistment: 010508               Date of Discharge: 040513

 Length of Service (years, months, days):

         Active: 03 00 06 (Does not exclude lost time.)
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 82

 Highest Rank: PFC                          MOS: 6672 (Aviation Supply Specialist)

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 0.0 (*)                       Conduct: 0.0 (*)

 Military Decorations: CertComm

 Unit/Campaign/Service Awards: SSDR, NDSM, PUC

 Days of Unauthorized Absence: 20011226-20020107 (13), 20031014-20031020 (7),
20031117-20031217 (31)
         
* No marks found in Applicant’s service record.
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.6.

 Chronological Listing of Significant Service Events :

011022:  Counseled for deficiencies in performance and conduct. [Unauthorized absence.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
011226:  Applicant to UA/AWOL.
020107:  Applicant from UA/AWOL.
020129:  NJP for violation of UCMJ, Article 86: … UA(AWOL) …
 Violation of UCMJ, Article 92: … repeatedly lied to his Warrant Officer and NCO.
Violation of UCMJ, Article 134: … traveled out of bounds …
Awd red to Pvt/E-1, forfeiture of $552.00 per month for 1 month, and 29 CCU. Red to Pvt/E-1 susp for 6 mos. Not appealed.
020510:  NJP for violation of UCMJ, Article 86: UA(AWOL) …
 Awarded 45 days restriction and extra duties. Not appealed.
020520:  NJP imposed and suspended on 020129 is hereby vacated and ordered executed.
030907:  Applicant to UA/AWOL.
030908:  Applicant from UA/AWOL.
030922:  Counseled for deficiencies in performance and conduct. [Alcohol related incident, causing destruction of government property.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
031014:  Applicant to UA/AWOL.
031021:  Applicant from UA/AWOL.
040204:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 86 (3 Specifications):
         Specification 1: … 030907, w/o authority, absent himself … and did remain so until … 030908.
         Specification 2: … 031016, w/o authority, absent himself … and did remain so until … 031021.
         Specification 3: … 031117, w/o authority, absent himself … and did remain so until … 031218.
         Charge II: violation of the UCMJ, Article 108:
         Specification: … w/o authority, willfully destroy …
         Charge III: violation of the UCMJ, Article 134:
         Specification: … willfully communicate … a threat …
         Findings: to Charge I, not guilty. To specification 1 under Charge I, withdrawn. To specification 2 under Charge I, guilty. To specification 3 under Charge I, not guilty; to the specification as (excepted): guilty.
To Charge II and specification thereunder, guilty.
To Charge III and specification thereunder, guilty.
         Sentence: Reduction to E-1/Pvt, forfeiture of $700.00 per month for 3 months, and confinement for 75 days.
         CA 040503: Sentence approved and ordered. The period of time spent in pretrial confinement … a total of 47 days, is credited toward the period of confinement.

040209:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by the Applicant’s “commission of a serious offense, as supported by his Special Court-Martial held on 4 February 2004 for violating three Articles of the UCMJ.”
040211:  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.

040212:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. The factual basis for this recommendation was the Applicant’s “commission of a serious offense, as supported by his Special Court-Martial held on 4 February 2004 for violating three Articles of the UCMJ. Specifically, three specifications of Article 86 (Unauthorized Absence), one specification of Article 108 (Damage to government property), and one specification of Article 134 (communicating a threat) to a Chief Warrant Officer.”

040326:  GCMCA [Commanding General, 2d Marine Aircraft Wing] recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
040422:  Deputy Commandant for Manpower and Reserve Affairs, HQMC directed the Commanding General, 2d Marine Aircraft Wing to discharge the Applicant under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

040505:  Applicant debarred from entering MCAS Cherry Point as well as all other installations commanded by Commander, Marine Corps Air Bases East effective the day of discharge.

PART III – RATIONALE FOR DECISION AND PERTINENT
REGULATION/LAW

Discussion

The Applicant was discharged on 20040513 under other than honorable conditions for misconduct due to the commission of a serious offense (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: In the Applicant’s case, the Board discovered no impropriety or inequity and considers his discharge to be proper . Normally, a service characterization of bad conduct is warranted when the service member’s actions constitute a significant departure from that expected of a member of the United States Marine Corps. The Applicant’s record is devoid of any evidence that he was not responsible for his conduct or that he should not be held accountable for his actions. The Applicant’s service record is marred by award of nonjudicial punishment (NJP) on two separate occasions for unauthorized absence, failure to obey orders and traveling out of bounds without authority . Additionally, he was convicted at a Special Court-Martial for unauthorized absence, wrongful destruction of government property and communicating a threat. The Applicant’s summary of service clearly reflects his disobedience of the orders and directives regulating good order and discipline in the naval service, and demonstrated he was unsuitable for further service. It must be noted that most Marines serve honorably; thereby, earning their 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 honorable would be inappropriate. Relief denied.
 
 Concerning the Applicant’s desire “to serve (his) country in another capacity as National Guard or Reserves,” the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces. Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment. A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter. T his issue does not serve to provide a foundation upon which the Board can grant relief.

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 verifiable 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 P1900.16E), effective 01 September 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 92, Failure to obey order or regulation ; Article 108, Wrongful destruction of military property of United States ; Article 134, Communicating a threat and traveling out of bounds.
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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