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USMC | DRB | 2005_Marine | MD0501391
Original file (MD0501391.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD05-01391

Applicant’s Request
The application for discharge review was received on 20050809. 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 20060522. 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 and from an attached letter to the Board:

“My misconduct was due to youthful indiscretion. I have been a model citizen since leaving the military.”

“ I am writing this letter in hopes of rejoining the Marine Corps. It recently came to my attention that it would be possible to return to the Marine Corps if my discharge was upgraded from a ‘RE4’ to a code eligible for re-entry and with your approval. It is with the utmost humility that I ask you to please consider allowing me to rejoin the Marines.

Eight years ago I left for boot camp and completed my basic training. It was the best time of my life. Unfortunately, I made some very poor decisions which led me to being discharged. I have regretted it every day since. Since making those mistakes I have matured and grown both mentally and intellectually. Over the years I have had plenty of time to reflect and think about where I went wrong. I have had a couple of great jobs but none of them beat the Marines. I feel like I am just biding time here and really have nothing to aspire to in the civilian world. Knowing what I do know, I can promise you that I will be nothing short of an exemplary Marine. If given a second chance, I would make the very best out of every cherished moment. Also, if I had to go back to boot camp, I would gladly go. Actually, I would rather prefer to go back because I believe that I could be a great mentor and leader to the new recruits.

In closing, I would like to thank you for your time and consideration in this matter. If there is anything that I need to do to further prove how grateful I would be, then I am at your mercy. Ego sum simper fidelis.

Respectfully,


[signed] K_ D. N_ (Applicant)”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Copy 4)
Character Reference ltr from M_ F. S_ Jr., dtd July 30, 2005
Character Reference ltr from D_ E. P_, undated

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19960925 – 19970721               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19970722             Date of Discharge: 19980601

 Length of Service (years, months, days):

 Active: 00 10 10 (Does not include lost time.)
          Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 21 days
         Confinement:              None

 Age at Entry: 18

 Years Contracted: 4

Education Level: 12                                 AFQT: 70

 Highest Rank: Pvt                                   MOS: 9900

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.1 (1)                                Conduct: 4.2 (1)

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Rifle Expert Badge


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 :

970722:  Moral waiver updated by 6 th MCD this date.

971113:  Applicant to unauthorized absence at 0700 on 971113.

971117:  Applicant from unauthorized absence at 0800 on 971117 (4 days/surrendered).

971125:  Applicant to unauthorized absence at 0930 on 971125.

971201:  Applicant from unauthorized absence at 1600 on 971201 (6 days/surrendered).

971230:  Applicant to unauthorized absence at 0700 on 971230.

980104:  Applicant from unauthorized absence at 1730 on 980104 (5 days/surrendered).

980213:  Applicant to unauthorized absence at 1600 on 980213.

980219:  Applicant from unauthorized absence at 0200 on 980219 (6 days/surrendered).

980226:  NJP for violation of UCMJ, Article 86: UA from 0700 13 November 1997-0800, 17 November 1997 from MATCo, HqSptBn, SOI MCB, CamLej; violation of UCMJ, Article 86: UA from 0930, 25 November 1997 – 1600, 1 December 1997 from MATCo, HqSptBn, SOI, MCB, CamLej; violation of UCMJ, Article 86: UA from 30 December 1997 – 1730, 4 January 1998 from MATCo, HqSptBn, SOI, MCB, CamLej;
         Violation of UCMJ, Article 86: UA from 1600, February 1998, 19 February 1998 from MATCo, HqSptBn, SOI, MCB, CamLej.
         Award: Forfeiture of $463.00 pay per month for 2 months, restriction and extra duty for 45 days. Not appealed.




980226:  Counseling: Advised of deficiencies in performance and conduct (Bn NJP held 980226 for violation of articles 86 (x4), and 121 of the UCMJ, specifically; Unauthorized absence and Stealing Personal Property of another Marine.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980313:  NJP for violation of UCMJ, Article 86: At MATCo, HqSptBn, SOI, MCB, CamLej, 0800, 25 February 1998, did absent himself from his appointed place of duty, to wit: MATCo, HqSptBn, SOI, MCB, CamLej.
         Award: Forfeiture of $216.00 pay per month for 1 month, restriction and extra duty for 14 days. Not appealed.

980318:  Counseling: Advised of deficiencies in performance and conduct (Bn NJP held 980313 for violation of article 86 of the UCMJ, specifically; Unauthorized absence.), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.

980415:  Commanding Officer, Marines Awaiting Training Company, recommended to Commanding Officer, Headquarters and Support Battalion that the Applicant be discharged from the United States Marine Corps with an Other than Honorable characterization of service due to a pattern of conduct.

980424:  Applicant notified of intended recommendation for discharge by reason of misconduct due to a pattern of misconduct with a characterization of service as under other than honorable conditions. The factual basis for this recommendation was the Battalion NJP of 26 February 1998 and Company NJP of 13 Mar 1998.
980424:  Applicant advised of rights and having elected not to consult, elected to waive all rights.

980424:  Commanding Officer, Headquarters and Support Battalion, School of Infantry, recommended to Commanding General, Marine Corps Base, Camp Lejeune NC, that the Applicant be discharged under other than honorable conditions by reason of misconduct due to pattern of misconduct. The factual basis for this recommendation was based on his pattern of misconduct as identified by pages 7 and 8 of enclosure (2). Commanding Officer’s comments: “Private N_ (Applicant) has demonstrated a blatant disregard for rules and regulations that govern the good order of the Marine Corps. He has shown a definite lack of Honor, Courage and Commitment and has proven to me that he does not possess the discipline for continue service in the Marine Corps.”

980513:  SJA review determined the case sufficient in law and fact.

980518:  Commanding General, Marine Corps Base, Camp Lejeune, NC, advised the Commandant of the Marine Corps (MMSB) that the Applicant will be discharged under other than honorable conditions by reasons of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19980601 by reason of misconduct due to a pattern of misconduct (A and B) 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 (C and D).

The Applicant contends that his problems in the Marine Corps can be attributed to his youthful indiscretion. While he may feel that this was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code. Reenlistment policy of the Marine Corps is promulgated by the Commandant, United States Marine Corps, Code MMEA, 3280 Russell Road, Quantico, VA 22134. Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment. A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.

When the service of a member of the U.S. Marine Corps 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. T he Applicant’s service was marred by 2 nonjudicial punishment proceedings for violations of Articles 86 (5 specifications) of the UCMJ. In addition the Applicant received 2 retention warnings, for being UA and for stealing the personal property of another Marine. 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 U.S. Marine Corps and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.
The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered. The Applicant provided letters of recommendation from his employer and a friend as documentation of his post-service accomplishments. The Applicant's efforts need to be more encompassing than those provided. For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities. At this time, the Applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in the characterization of discharge. Therefore, no relief will be granted.

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 additional evidence related to this 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 P1900.16E), effective 31 Jan 97 until 31 Aug 01.

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 121, larceny and wrongful appropriation.
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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