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USMC | DRB | 2005_Marine | MD0500952
Original file (MD0500952.rtf) Auto-classification: Denied


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

ex-Sgt, USMC
Docket No. MD05-00952

Applicant’s Request
The application for discharge review was received on 20050511. 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 20051006. 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 separation in lieu of trial by court-martial.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

No issues were submitted by the Applicant.

 Applicant marked the Box “I HAVE LISTED ADDITIONAL ISSUES AS AN ATTACHMENT TO THIS APPLICATION.” None were found.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 1)
Applicant’s honorable discharge certificate, dtd July 25, 2000

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19960328 - 19960806      COG
          Active: USMC     19960807 - 20000725      HON
Period of Service Under Review :
Date of Enlistment: 20000726             Date of Discharge: 20030314

 Length of Service (years, months, days):

 Active: 02 07 19
          Inactive: None

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

 Age at Entry: 22

 Years Contracted: 4

 Education Level: 12                                 AFQT: 54

 Highest Rank: Sgt                                   MOS: 7212/1371

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.5 (1)              Conduct: 4.5 (1)

 Final Enlisted Performance Evaluation Averages: Enlisted fitness reports were available to the Board for review.
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): National Defense Service Medal, Sea Service Deployment Ribbon 2nd Award, Good Conduct Medal, Armed Forces Service Medal, Armed Forces Expeditionary Medal, Letter of Appreciation (3), Rifle Marksmanship Badge, Pistol Marksmanship Badge


Character, Narrative Reason, and Authority of Discharge (at time of issuance):
UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT-MARTIAL, authority: MARCORSEPMAN Par. 6419

 Chronological Listing of Significant Service Events :

000726:  Reenlisted this date for a term of 4 years.
010207:  MC Det NJP for violation of UCMJ, Article 92:
         Specification: Disobeying a lawful order or regulation to wit on or about 1400-2100, on 21 Jan 01, brks 1003, Fort Bliss, TX, Sgt C_ (Applicant) did assign PFC C_ EMI without proper authority by the Commanding Officer to conduct on a day of worship, also, PFC C_ was assigned EMI for a period of 7 hours vice 2 hours per JAGINST 5800.7C para. 0103.
 Violation of UCMJ, Article 108:
Specification: Destruction of government property to wit on or about 6 Jan 01, brks 1003, Fort Bliss, TX, Sgt C_ (Applicant) did knowingly damage the hatch in room 115, brks 1003 by kicking it until it was forced open.
Violation of UCMJ, Article 123a:
Specification: Making, drawing or uttering checks without sufficient funds to wit on two different occasions 010201 and 010212, Sgt C_ (Applicant) did knowingly write checks without sufficient funds to cover checks. Total amount $400.00.
         Award: Forfeiture of $500 per month for 2 months, reduction to E-4. Reduction suspended for 6 months. Not appealed.

011203:  Counseling: Advised of deficiencies in performance and conduct (Pattern of misconduct, continuous periods of unauthorized absence and not setting the example.) Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

021217:  Charges preferred for violation of the Uniform Code of Military Justice. No further information found in service record.

030210:  Applicant, having consulted with counsel certified under UCMJ Art 27b, requested discharge for the good of the service in lieu of trial by court- martial. In the request the Applicant noted that his counsel had fully explained the elements of the offenses for which he was charged and that he understood the elements of the offenses. He further certified a complete understanding of the negative consequences of his actions and that characterization of service would be under other honorable conditions. The Applicant admitted guilt to two violations of the UCMJ, Article 92: Wrongfully hazing Cpl W. J. B_ and Cpl C. B_ on both 13 October 2002 and 18 October 2002 and one violation of Article 134: Communicating a threat to Cpl W. J. B_ and Cpl C. B_ on 18 October 2002.

030225:  SJA review determined the case sufficient in law and fact.

030225:  GCMCA, Commanding General, 2d Marine Aircraft Wing, directed the Applicant's discharge under other than honorable conditions in lieu of trial by court-martial.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030314 in lieu of trial by court-martial (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 introduced no decisional issues for consideration by the Board. H owever, 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. 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. Therefore, no relief is granted on this basis.

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 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 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective
01 September 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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