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USMC | DRB | 2005_Marine | MD0500633
Original file (MD0500633.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD05-00633

Applicant’s Request
The application for discharge review was received on 20050228. 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 20050608. 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. "I would like my discharge to be upgraded for my personal reasons. I believe I deserve an Honorable discharge for my years of faithful military service."

2. "I am writing in regards to upgrading my discharge from the United States Marine Corps. I fully regret the misconduct that led to my Other than Honorable discharge. I am still extremely proud of having served in the United States Marine Corps. I would greatly appreciate the second chance to better myself and the Marine Corps.

The Marine Corps made me grow up quickly, but I was still immature in many areas of my life. Now that I am older, I can look back and realize the foolish mistakes that I made. I know now how seriously how they affected everyone around me. Especially my wife and daughter.

I gained much from being in the Marine Crops. I learned the value of Honor, Courage and Commitment. Being a Military Police officer our platoon was like one big family. We all helped each other, but it only took "one" to break the families trust.

My lack of good judgment has affected me tremendously over the last three and a half years. Not a day has gone by that I haven't wished that I could have done it more honorably. That is why I am writing this letter to graciously as for a second chance to serve my country to the best of my ability. I believe that I can still be a valuable asset to the Marine Corps."


 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter of recommendation from Rev. M_ R. D_, dated February 4, 2005


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                980904 - 981013  COG

 Period of Service Under Review :
Date of Enlistment: 981014               Date of Discharge: 011009

 Length of Service (years, months, days):

         Active: 02 11 26
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 68

 Highest Rank: LCpl                         MOS: 5811

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.9 (7)                       Conduct: 3.9 (7)

 Military Decorations: None

 Unit/Campaign/Service Awards: MUC

 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 :
010129:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86: Specification: In that LCpl C_ (Applicant), on or about 5 October 2000, without proper authority went from his patrol area.
         Charge II: violation of the UCMJ, Article 108: Specification: In that LCpl C_ (Applicant), on or about 5 October 2000, without proper authority though neglect, damaged, by driving off the road and rolling over, a 2000 Ford Explorer of a value of about 22,000.00, military property of the United States, the amount of damage being in the sum of about $8,400.00.
         Finding: to Charge I and the specification thereunder, not guilty and Charge II and the specification thereunder, guilty.
         Sentence: Forfeiture of $521.00 pay per month for 1 month, hard labor without confinement for 45 days. Reduced to E-1 (suspended for 6 months).
         CA action 010202: Sentence approved and ordered executed.

010228:  Counseled for deficiencies in performance and conduct. [Failure to make adequate progress while assigned to weight control] Necessary corrective actions explained, sources of assistance provided, and disciplinary and discharge warnings issued.

010313:  SUPPLEMENTAL entry to Record of Conviction by Court-Martial: The sentence suspended on 010201 is vacated. The reduction Pvt/E-1 is ordered executed.

010315:  Counseled for deficiencies in performance and conduct. [Unauthorized absence from EPD and making false official statement] Necessary corrective actions explained, sources of assistance provided, and disciplinary and discharge warnings issued.

 010315:  NJP for violation of UCMJ, Article 86: Specification: Failed to be at
 appointed place of duty; violation of UCMJ, Article 107 (spec):
 Specification: Did, with intent to deceive, sign an official record that was totally false and was known by you to be totally false. Awarded 30 days at correctional custody unit. Not appealed.
010712:  Applicant acknowledged that he was eligibile but not recommended for promotion to PFC for month of July due to being assigned to weight control.
010731:  NJP for violation of UCMJ, Article 86: Specification: In that Pvt C_
 (Applicant), did, at or about 0501 on 010527 without authority, absent
himself from his appointed place of duty, to wit; squadron remedial PT
and did so remain absent until 0820 on 010627; violation UCMJ, Article
113: Specification: In that Pvt C_ (Applicant), was, at or about 1730 on
010619 while posted as the Sentry for exiting gate 212, found asleep
at his post. Awarded forfeiture of $521.00 pay per month for 1 month,
extra duties for 45 days (suspended for a period of 6 months). Not
appealed.
010822:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
010822:  Applicant advised of rights and having consulted with qualified counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

010822:  Commanding Officer, Headquarters and Headquarters Squadron, MCAS, Cherry Point, NC 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 continued involvement with military authorities as evidenced by his Summery Court-Martial conviction, two nonjudicial punishments, and two Page 11 entries in his service record.

010921:  SJA review determined the case sufficient in law and fact.

010924:  Commanding General, Marine Corps Air Station, Cherry Point, NC authorized 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 20011009 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 Applicant contends that his years of faithful military service are deserving of an honorable discharge. When the service of a member of the Marine Corps has been honest and faithful, it is appropriate to characterize that service as honorable. A discharge with a characterization of under other than honorable conditions 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 two formal counseling entries for deficiencies in performance and conduct; two nonjudicial punishment (NJP) proceedings for violations of UCMJ Articles 86 Unauthorized absence
(2 total specifications), 107 False official statements, and 113 Misbehavior of a sentinel or lookout; a summary court-martial for violation of UCMJ Article 108 Damage of military property; and the vacating, due to continued misconduct, of the portion of the sentence adjudged at that summary court-martial and suspended on 010201 . 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 on this basis is denied.

Issue 2: The Applicant also contends that his disciplinary problems were the result of his being young and immature at the time of his service. While he may feel that his immaturity mitigates his misconduct, the record does not contain any evidence that the Applicant was either not responsible for his actions or did not willfully and negligently absent himself from his command. The Applicant's misconduct is clearly documented, as described above. Further, the applicant, on 010822, after acknowledging his understanding of the rights afforded to him as part of the administrative discharge process, waived his right to an administrative discharge board. The evidence of record does not show that the Applicant should not be held accountable for his actions. Relief on this basis is denied.

The following is provided for the edification of the Applicant. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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 Marine Corps. 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. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities. The Applicant has not provided sufficient documentation for the Board to consider. Relief on this basis is not warranted.

Additionally, the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other branch of the Armed Forces. The NDRB is not authorized to change a reenlistment code. Reenlistment policy of the Marine Corps is promulgated by the Commandant, United States Marine Corps, Code MMEA, 3280 Russell Road, Quantico, VA 22134. Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment. A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.

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 or any other evidence related to his discharge 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 113 Misbehavior of a sentinel or lookout.
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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