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USMC | DRB | 2005_Marine | MD0500879
Original file (MD0500879.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. MD05-00879

Applicant’s Request
The application for discharge review was received on 20050426. The Applicant requests the Discharge 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 designate a representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20060406. After a thorough review of the available 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 Honorable Conditions (General) by reason of misconduct due to minor disciplinary infractions.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I am currently going to school to get my bachelors of nursing & will be applying for jobs at hospitals, and I would like to show my service in the military (even though brief) as being in good standing not as general under hon. I am currently married with 2 children & this is going to be my & my families support throughout life. Thank you for your time & consideration in this extremely pressing & important matter. If you have any questions or need any other information please feel free to contact me at address, phone number, or email listed in 12 a, b, or c. Thank you again for your time & consideration.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Final Judgment Name Change Order dtd May 17, 2001
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19920220 - 19920824               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19920825             Date of Discharge: 19940824

 Length of Service (years, months, days):

 Active: 02 00 00
         Inactive: None

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

 Age at Entry: 18

Years Contracted: 5

Education Level: 12                                 AFQT: 75

 Highest Rank: LCPL                                  MOS: 4063

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.4 (4)                       Conduct: 4.4 (4)

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


Character, Narrative Reason, and Authority of Discharge (at time of issuance):
UNDER HONORABLE CONDITIONS (GENERAL)/(MISCONDUCT) MINOR DISP INF, authority: MARCORSEPMAN Par. 6210.2.

 Chronological Listing of Significant Service Events :

920220:  Moral waiver approved this date.

930810:  Counseling: Advised of deficiencies in performance and conduct (Unauthorized absence from 0631 to 0845 on 930806.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

931027:  Counseling: Advised of deficiencies in performance and conduct (Unauthorized absence on 931025 from 0701 to 0733.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940228:  Counseling: Advised of deficiencies in performance and conduct (Failure to maintain a balanced checking account.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940401:  NJP for violation of UCMJ, Article 86: Did on or about 940309, from 0631 to 0700 absent himself from his appointed place of duty, to wit: Battalion clean up.
 Violation of UCMJ, Article 123a: Did, on or about 931228, utter a check #262 in the amount of $26.35 without sufficient funds in his account.
Violation of UCMJ, Article 107: Did, at or about 0630, 940310, make a false official statement to SgtMaj P_ that full restitution had been made for check #262 dtd 931228.
         Award: Reduction to PFC, forfeiture of $300 per month for 2 months (forfeiture of $150 per month for 2 months suspended for 2 months), restriction for 30 days. Not appealed.

940411:  Applicant notified of intended recommendation for discharge under honorable conditions (general) by reason of misconduct. The least favorable character of service possible is under other than honorable conditions.

940411:  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.

940609:  Counseling: Advised of deficiencies in performance and conduct (Failure to be at your appointed place of duty.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940706:          Commanding Officer, Headquarters Battalion, Marine Reserve Force, recommended Applicant’s discharge under honorable conditions (general) by reason of misconduct. The factual basis for this recommendation was that on or about 930810, SNM received a page 11 entry for violation of Article 86, UCMJ. That on or about 931027, SNM received a page 11 entry for violation of Article 86, UCMJ. That, on or about 940401, SNM was the subject of NJP for violation of Article 86, 107, and 123a, UCMJ. That, on or about 940609, SNM received a page 11 entry for violation of Article 86, UCMJ.

940815:  SJA review determined the case sufficient in law and fact.

940815:  GCMCA, Commanding General, Marine Reserve Force directed the Applicant's discharge with a under honorable conditions (general) by reason of misconduct minor disciplinary infractions.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19940824 by reason of misconduct due to minor disciplinary infractions (A and B) with a service characterization of under honorable conditions (general). After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D). The Board presumed regularity in the conduct of governmental affairs (E).

 When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as honorable. 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 for violations of Articles 86, 107 and 123a of the UCMJ. Violations of Articles 107 and 123a of the UCMJ are considered serious offenses. The record also shows the Applicant was counseled on three occasions for unauthorized absence/failure to be at his appointed place of duty. The Applicant’s conduct is considered a violation of the special consideration required for the Applicant’s waiver for enlistment on 19920220. 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. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. 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 relevant post-service 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. 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 107, false official statement or Article 123a, uttering checks with intent to deceive or insufficient funds.
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 .

E. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs .



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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