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USMC | DRB | 2005_Marine | MD0500785
Original file (MD0500785.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-PFC, USMC
Docket No. MD05-00785

Applicant’s Request
The application for discharge review was received on 20050330. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions). The Applicant requests a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051013. 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 by reason of misconduct due to a pattern of misconduct.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application to the Board:

“I made mistakes while serving in the military but mainly I allowed my personal life interfere with my military career I am trying to re-enter the military to correct past mistakes and better my life as well as start a family. I would greatly appreciate the opportunity to make a long career out of the military.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
DD Form 149
Letter of Explanation from Applicant dtd June 14, 2005

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    20010726 – 20020210               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20020211             Date of Discharge: 20040813

 Length of Service (years, months, days):

 Active: 02 06 03
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: none
         Confinement:              none

 Age at Entry: 17 (Parental Consent)

Years Contracted: 4

Education Level: 12                                 AFQT: 64

 Highest Rank: LCpl                                  MOS: 0151

 Final Enlisted Performance Evaluation Averages (number of marks): [Extracted from case file]

 Proficiency: 3.9 (8)                       Conduct: 3.8 (8)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): National Defense Service Medal, Rifle Qualification Badge (Sharpshooter).


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 :

021106:  Counseling: Advised of deficiencies in performance and conduct (Lack of judgment, irresponsibility and maturity in that on or about 021104, failure to obey a lawful order from a noncommissioned officer, in which you went into business out of town with camouflage utilities after being told not to and getting in a verbal argument with civilians where profanity was used constantly.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

021106:  Acknowledged understanding of eligibility but not recommended for promotion to LCpl for the month of Dec 2002, Jan, Feb 2003 Promotion period because of my failure to obey a lawful order. Applicant chose not to make a statement.

UNDATED:         Counseling: Advised of deficiencies in performance and conduct (Lack of judgment, irresponsibility and maturity and UA in that on or about 0800, 030525, at MCB CLNC, without authority absent yourself from your appointed place of duty, to wit: barracks A Duty. In that on or about 030525 you were not at your appointed place of duty. Total disregard for obeying orders and regulations, and conduct which is prejudicial to good order and discipline of the Armed Forces.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

UNDATED:         Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of Jul, Aug, Sep 2003 Promotion period because of my lack of judgment, irresponsibility and maturity for being unauthorized absence from my appointed place of duty. Applicant chose not to make a statement.

030612:  Company NJP for violation of UCMJ, Article 86: In that LCpl C_, N_ A.(Applicant) xxx-xx-xxxx, did on or about 0800 25 May 03, without authority, fail to go to his appointed place of duty at which he was required to be, to wit: Barracks A duty.
 Award: Forfeiture of $678 per month for 1 month, restriction and extra duty for 30 days. Forfeiture of $678 per month for 1 month, 15 days restriction suspended for 6 months. Not appealed.
040310:  Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of Apr Promotion period because immaturity and lack of judgment. Applicant chose not to make a statement.

040319:  Company NJP for violation of UCMJ, Article 92: In that LCpl C_ (Applicant) on 20040308 having knowledge of a lawful order issued by GySgt C_ failed to obey the same.
 Award: Forfeiture of $174 per month for 1 month, restriction and extra duty for 14 days. Not appealed.
040704:  Counseling: Advised of deficiencies in performance and conduct (lack of motivation, physical fitness, endurance, mental toughness and for failing the semi-annual company PFT on 20040630 with a run time of 28:37, 92 crunches and 8 pull-up with a total score of 132.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

040804:  Commanding General NJP for violation of UCMJ, Article 86: At HqCo 4TH MEB (AT), LCpl C_ (Applicant) failed to go at the prescribed time for PT at barracks HP-175 at 0630 on 20040730 and didn’t return until 0930 on 20040730.
 Violation of UCMJ Article 92: In that LCpl C_ (Applicant) having knowledge of a lawful order issued by Cpl B_ and HM3 K_, an order which it was his duty to obey, failed to obey the same.
         Award: Forfeiture of $747 per month for 2 months, restriction for 45 days, and reduction to E-2. Restriction for 45 days, forfeiture of $747 per month for 2 months suspended for 6 months. Not appealed.

040806:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service under other than honorable conditions by reason of misconduct due to a pattern of misconduct. The factual basis for this recommendation was your established pattern of misconduct. [Extracted from case file].

040806:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation. [Extracted from case file].

040806:  Commanding Officer, Headquarters Company, 4th Marine Expeditionary Brigade recommended to Commanding General, 4th Marine Expeditionary Brigade (AT), the Applicant’s discharge under other than honorable conditions under paragraph 6210.3 of MCO P1900.16F (MARCORSEPMAN). [Extracted from case file].

040809:  SJA review determined the case sufficient in law and fact.

040812:  GCMCA, Commanding General, 4th Marine Expeditionary Brigade (AT), informed Commandant of the Marine Corps (MMSB) that Applicant was directed discharged under other than honorable conditions by reason of misconduct pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040813 by reason of misconduct due to a pattern of misconduct (A) with a service characterization of under other than honorable conditions. 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 (B and C).

The Applicant suggests that his discharge was inequitable since extenuating family issues precipitated his misconduct. The Board recognizes that serving in the Marine Corps is challenging. Our country is fortunate to have the many young men and women who are willing to endure the hardships and sacrifices required in order to serve their country. It must be noted that most members of the Marine Corps serve honorably and therefore earn their honorable discharges. While the Applicant claims extenuating family challenges caused his misconduct, the Applicants records do not show that he was not responsible for his conduct and should not be held accountable. The Board concluded that the Applicant's service was equitably characterized, and so relief on this basis is denied.

The Applicant desires a characterization of service upgrade in order to reenter service. The Board recognizes the Applicant’s motivation to reenter military service, yet it is worth reminding the Applicant that the factual basis for discharge was a pattern of misconduct. The Applicant’s records contain:
•         Counseling entry on 20021106 for failure to obey a lawful order;
•         Counseling entry on 20021106 not recommending promotion to Lance Corporal;
•         Counseling entry for unauthorized absence;
•         Counseling entry not recommending promotion to Corporal;
•         Company level nonjudicial punishment on 20030612 for violation of UCMJ Article 86 Unauthorized absence;
•         Counseling entry on 20040310 not recommending promotion to Corporal;
•         Company level nonjudicial punishment on 20040319 for violation of UCMJ Article 92 Failure to obey order;
•         Counseling entry on 20040704 for lack of motivation, physical fitness, endurance, mental toughness, and failing semi-annual physical fitness test; and
•         Commanding General level nonjudicial punishment for violation of UCMJ Article 86 Unauthorized absence.
These negative aspects of the Applicant’s service served to inform the characterization of under other than honorable conditions, which he received. Notwithstanding, the Applicant is advised that the Board has no jurisdiction over reenlistment, reentry, or reinstatement into any of the Armed Forces. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Since this issue does not serve to provide a foundation upon which the Board can grant relief, relief on this basis is not warranted.

The following is provided for the Applicant’s edification. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question, but the Board found no such impropriety or inequity. While 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 Board 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. 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, verifiable employment records, documented community service, and certification of non-involvement with civil authorities are examples of documentation that should have been provided to receive consideration for relief based on post-service conduct. At this time, the Applicant did not provided any post-service documentation for consideration. Relief on this basis is not warranted.

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

C. 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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