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USMC | DRB | 2005_Marine | MD0500730
Original file (MD0500730.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD05-00730

Applicant’s Request
The application for discharge review was received on 20050324. 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 designated the Disabled American Veterans as his representative.

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: GENERAL (NDER HONORABLE CONDITIONS)/COMPLETION OF REQUIRED ACTIVE SERVICE, authority: MARCORSEPMAN Par. 1005.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1. “I went UA for 29 days upon my return I was told by going to the brig for 30 days I still would receive an honorable discharge.”

Additional issues submitted by Applicant’s counsel/representative (DISABLED AMERICAN VETERANS):

2. “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 General Under Honorable Conditions, to that of Honorable.

The FSM served on active service from November 2, 1999 to December 2, 2003 at which time he was discharged due to Completion of required active service.

On review of the documentation provided the Applicant states he believes the discharge is improper because the whole of his active service was Honorable except for a period of twenty-nine days of absence without leave that required thirty days in the Brig. Further stating that he was told that even though he would go to the Brig for this infraction he would still receive an Honorable discharge.

This creates a need for a review of the application of the standard, for the Board to determine that the applicant’s discharge was improper. The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted, when comparing his active service against the three violations of the Uniformed Code of Military Justice in the form of Articles 86, and two counts of Article 112a. See, SECNAVIST 5420.174 D, Sect. 407, part 3

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, after a review of the entire packet to include any character references, provided by the Applicant. These issues do not supersede any issues previously submitted by the applicant.

Respectfully,”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 4 and 1)
Transcript from University of Nebraska dtd April 23, 1999 (2 pages)
University of Nebraska, Senior Review, dtd June 10, 1997
University of Nebraska, Academic Dept Review of Major, dtd April 22, 1992
University of Nebraska General Studies and Graduation Requirement Review dtd February 26 1997
University of Nebraska Analysis of Degree Progress, dtd June 10, 1997, with update dtd October 8, 1999 (5 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                991029 - 991031  COG

 Period of Service Under Review :
Date of Enlistment: 991101               Date of Discharge: 031202

 Length of Service (years, months, days):

         Active: 03 11 07                  (Excludes lost time)
         Inactive: None

 Age at Entry: 29                          Years Contracted: 4

Education Level: 15                        AFQT: 53

 Highest Rank: Cpl                          MOS: 1833

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: NMF*                          Conduct: NMF*

 Military Decorations: None

 Unit/Campaign/Service Awards: Presidential Unit Citation, GCM, NDSM(2), SSDR, Rifle Sharpshooter Badge

 Days of Unauthorized Absence: 29

*No Marks Found in service record book.

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

GENERAL (UNDER HONORABLE CONDITIONS)/COMPLETION OF REQUIRED ACTIVE SERVICE, authority: MARCORSEPMAN Par. 1005.

 Chronological Listing of Significant Service Events :

991029:  Enlistment waiver granted for marijuana use and one felony.

 030123:  NJP for violation of UCMJ, Article 128: At Camp Pendleton, CA, on or about 18 Dec 2002, the Intervention and Treatment Branch Case Review Committee, Case number [deleted] substantiated that on 21 Nov 2002, you did inflict physical abuse level 3 against your spouse.
 Award not contained in service record. Not appealed.
030812:  Applicant tested positive for marijuana. [Extracted from Substance Abuse Counselor entry on 031028.]
031006:  Counseled for deficiencies in performance and conduct [On January 23, 2003, found guilty at Company NJP for violation of the UCMJ – specifically Article 128 Assault]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

031028:  Applicant refused evaluation for treatment and was informed of availability of VA treatment.

031106:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86:
         Specification: Unauthorized Absence on 030905.
         Charge II: violation of the UCMJ, Article 112a (2 Specs):
         Specification 1: Wrongful use of a controlled substance on 030812.
         Specification 2: Wrongful use of a controlled substance on 031006.
         Finding: to Charge I and the specification thereunder, guilty.
         To Charge II and specifications 1 and 2 thereunder, guilty.
         Sentence: Reduction to LCpl/E-3, confinement for 30 days at Camp Pendleton, Base Brig.
         CA action 031121: Sentence approved and ordered executed.

031106:  To confinement, Sentence of SCM.

031202:  Applicant discharged under honorable conditions (general) by reason of completion of required active service and DD Form 214 issued.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20031202 with a general (under honorable conditions) character of service by reason of completion of required active service (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).

Issues 1-2. A general 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 nonjudicial punishment proceedings and a summary court-martial for violations of Articles 86, 112a and 128 of the UCMJ. Violations of Article 128, assault consummated by battery, are considered serious offenses. 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 Applicant contends that he was told he would receive an honorable discharge when he returned from unauthorized absence. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was told he would receive an honorable discharge. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. However, even if the Applicant could show he was informed he would receive an honorable characterization, such documentation would, in itself, not guarantee an upgrade of his character of service. Relief 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 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, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided any relevant 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. Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective
01 September 2001 until Present, Paragraph 1005, DISCHARGE FOR EXPIRATION OF ENLISTMENT OR FULFILLMENT OF SERVICE OBLIGATION

B. Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 128, assault, if adjudged at a Special or General Court-Martial.

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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