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USMC | DRB | 2005_Marine | MD0500728
Original file (MD0500728.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD05-00728

Applicant’s Request
The application for discharge review was received on 20050323. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance discharge review before a traveling panel. The Applicant listed Disabled American Veterans as the 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 DC at the Washington Navy Yard. 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 20050713. 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

No issues were submitted by the Applicant.

 Issues submitted by Applicant’s representative (Disabled American Veterans ):
1. “Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current Other Than Honorable Discharge to that of Honorable.

The FSM served on active service from May 28, 1991 to November 4, 1993 at which time he was discharged due to Misconduct - Minor Disciplinary Infractions. With a Meritorious Mast and Certificate of Commendation coinciding in this time frame.

On review of the documentation provided the record the Applicant has no comments or statements submitted for review to justify the change in discharge has he has requested.

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the Applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174D.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the Applicant.”

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)                         910107 - 910527  COG

 Period of Service Under Review :
Date of Enlistment: 910528               Date of Discharge: 931104

 Length of Service (years, months, days):

         Active: 02 05 07
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 42

 Highest Rank: LCpl                         MOS: 3381

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.6 (9)              Conduct: 3.2 (9)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR, MM, CoC

 Days of Unauthorized Absence: None

 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 :

930112:  NJP for violation of UCMJ, Article 86:
 Specification: Unauthorized absence from 0645-0845, 930103.
Awarded restriction and extra duties for 14 days. Not appealed.
930112:  Counseled for deficiencies in performance and conduct. [Lack of responsibility in reporting to place of duty on time.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

930508:  Applicant informed eligible but not recommended for promotion to Cpl for the June 1993 because of your failure to enroll in or complete the required PME courses for my grade.

930706:  Counseled for deficiencies in performance and conduct. [Repeated violations of the UCMJ, Article 86: Unauthorized absence on 930409, 930415, 930622, and 930626.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

 930714:  NJP for violation of UCMJ, Article 86 (2 specs):
 Specification 1: Unauthorized absence from 0730-0742, 930707.
Specification 2: Unauthorized absence from 0500-0528, 930708.
Awarded forfeiture of $250.00 per month for 2 months, restriction and extra duties for 30 days, reduction to E-2. Forfeiture of $150.00 per month for 2 months and reduction to E-2 suspended for 3 months. Not appealed.
930824:  Vacate forfeiture and reduction awarded at CO’s NJP dated 930714.

930825:  NJP for violation of UCMJ, Article 86 (2 specs):
 Specification 1: Unauthorized absence from 0330-0450, 930822.
Specification 2: Unauthorized absence from 0330-0430, 930823.
Awarded forfeiture of $407.00 per month for 1 month, reduction to E-1. Not appealed.
930830:  Counseled for deficiencies in performance and conduct. [Your continued violation of the UCMJ, Article 86 unauthorized absence on 930822 and 930823.] Necessary corrective actions explained, sources of assistance provided.

930830:  Applicant notified of intended recommendation for discharge by reason of misconduct due to minor disciplinary infractions. The least favorable characterization of service, which you may receive, is under other than honorable conditions.
920901:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights. [Year determined to be typographical error.]

930902:  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 your three nonjudicial punishments.

931022:  SJA review determined the case sufficient in law and fact.

931022:  Base Commander, Marine Corps Base, Camp Pendleton, 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 19931104 under other than honorable conditions for misconduct due to minor disciplinary infractions (A). The Board presumed regularity in the conduct of governmental affairs (B). 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 (C and D).

Issue 1. When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as honorable. An under other than honorable conditions 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 two retention warnings and three nonjudicial punishment proceedings for eight specifications of violations of Article 86 of the UCMJ. The punishment from the Applicant’s second NJP was partially suspended at adjudication on 19930714. As a result of the Applicant’s continued misconduct, however, that punishment was vacated on 19930824. 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 is not warranted.

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 Naval service. 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. As of this time, the Applicant has not provided any documentation for the Board to consider. 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. 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. 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.

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D. 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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