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USMC | DRB | 2006_Marine | MD0600128
Original file (MD0600128.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. MD06-00128

Applicant’s Request
The application for discharge review was received on 20051026. 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 20060927 . 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 (Under Honorable Conditions) by reason of unsatisfactory performance.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application.

 “I served a total of 3 years, 11 months and 21 days. In this time, I served this country honorably and loyally. I worked hard as an Aircraft Electrical Systems Technician keeping F/A-18 aircraft in the air. As a Marine, in relation to my discharge, I always maintained military appearance. My boots were always polished, uniform always ironed, and most of all looked fit and ready for duty. On many occasions I had to appear and take pictures in my Physical Training attire, Serv ice B ravo uniform and my camouflage uniforms. Never once did any for the Training Officers or Commanding Officers say that I was out of military appearance nor that I ever looked over weight. I remained ever vigilant in my efforts to adhere to the Height/Weight standard, at best only ever reaching 3 to 4 pound s under my maximum weight. At my final weigh in just before commencement from Recruit Training I weighed only 1 pound under my maximum weight, returning home for ten days having no clothing that fit appropriately I purchased jeans with a 29 inch waist. I don not believe with out being sick and dying that I could have been any thinner. Fortunately for me I grew another inch, shortly there after which gave me another 6 pounds to get comfortable with. Since the Marine Corps I have lived a Honorable life. I have attained a career in Engineering with out degree and make a modest wage. I donated a Kidney to my father, h i s had shut down due to a drug interaction that the doctors and the pharmacists did not foresee. I am married and responsible for two boys. I cannot with out further education climb the corporate world much higher. I need the use of my MGIB in order to do that. I contributed to the fund and served my country honorably, I deserve the right to use this benefit.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Character Reference ltr from J_ R. K_, LtCol, USMC ( R et), dtd October 9, 2005
 Applicant’s DD Form 214 (Member 1 and 4)
Letter from Applicant, dtd February 26, 2006
 Character Reference ltr from S_ W. M_, President and CEO, M _ Inc., dtd December 5, 2005
 Letter from D_ O. S_, R.N., Transplant Coordinator, dtd December 6, 2005
 Applicant’s Donor card

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive:        USMCR (DEP)      19940627 - 19950103      COG
          Active:  None

 Period of Service Under Review :
Date of Enlistment: 19950104             Date of Discharge: 19981223

 Length of Service (years, months, days):

 Active: 03 11 20
          Inactive: None

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

 Age at Entry: 18

 Years Contracted: 4

 Education Level: 12                                 AFQT: 77

 Highest Rank: LCpl                                  MOS: 6337

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.0 ( 9 )                                Conduct: 3.7 ( 9 )
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Rifle Marksmanship Badge, National Defense Service Medal, Sea Service Deployment Ribbon, Armed Forces Expeditionary Medal (OP Southern Watch 970522 to 970730)


Character, Narrative Reason, and Authority of Discharge (at time of issuance):
GENERAL (UNDER HONORABLE CONDITIONS)/UNSATISFACTORY PERFORMANCE, authority: MARCORSEPMAN Par. 6206.

 Chronological Listing of Significant Service Events :

960226:  Applicant a cknowledged understanding of eligibility but not recommended for promotion to LCpl for the Mar 1996 Promotion Period because of assignment to weight control on 960220.
960315:  Counseling: Advised of deficiencies in performance and conduct (Financial responsibility.) N ecessary corrective actions explained, sources of assistance provided, discharge warning issued.
960325:  Applicant a cknowledged understanding of eligibility but not recommended for promotion to LCpl for the Apr 1996 Promotion Period, because of failure to meet Marine Corps height and weight standards.
960516:  NJP for violation of UCMJ, Article 123a: Wrongfully uttering checks at the Navy exchange then knowing the maker did not have sufficient funds for the payment of said checks.
         Award: Restriction and extra duty for 30 days, reduction to E-1. Reduction suspended for 90 days. Not appealed.

 961220:  Counseling: Advised of deficiencies in performance and conduct (Unauthorized absences.) N ecessary corrective actions explained, sources of assistance provided, discharge warning issued.
980301:  Applicant a cknowledged understanding of eligibility but not recommended for promotion to Cpl for the April, May and June Promotion Quarter because currently on the Weight Control Program. Applicant chose not to make a statement.
980728:  NJP for violation of UCMJ, Article 86: In that LCpl D_(Applicant) failed to report at the prescribed time to place of duty (remedial PT) at 0615, 7 July and 9 July 98.
         Award: Restriction and extra duty for 14 days, reduction to E-2. Not appealed.

 981027:  Counseling: Advised of deficiencies in performance and conduct (Failed to report at the prescribed time to appointed place of duty.) N ecessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. Applicant chose not to make a statement.
981029:  NJP for violation of UCMJ, Article 86: At VMFA-323, MAG-11, 3d MAW, PFC D_(Applicant) was UA from his appointed place of duty (S-3) to weig h in and talk to Commanding Officer at 0800 on 16 Oct 98.
          Award: Forfeiture of $463 per month for 1 month, restriction for 30 days , reduction to E-1 . Restriction suspended for 4 months. Not appealed.

 981030:  Counseling: Advised of deficiencies in performance and conduct (Failing to report at the time prescribed to appointed place of duty.) N ecessary corrective actions explained, sources of assistance provided . Applicant advised that any further deficiencies in performance and/or conduct by 990429 will result in administrative separation or limitation of further service. Applicant advised that counceling(sic)/warning entry is made to afford the opportunity to undertake the recommended corrective action. Applicant chose not to make a statement.
981030:  Commanding Officer, VMFA-323 recommends that Applicant be administrative discharged.
         [Extracted from CG, 3d MAW ltr 1900/8 G-1A/5828 dtd 981210]
981210:  GCMCA, Commanding General, 3d Marine Aircraft Wing directed the Applicant's discharge as G eneral (under honorable conditions) by reason of unsatisfactory performance.
Service Record Book contains a partial Adm inistrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19981223 by reason unsatisfactory performance (A) with a service characterization of general (under 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 presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).
The Board viewed the Applicant’s issue as implying that the basis for his discharge, unsatisfactory performance, was improper and/or inequitable because he worked hard to maintain Marine Corps weight standards. In support, the Applicant submitted a letter from his former Commanding Officer , LtCol K_ . Weight control failure will not be used to separate overweight Marines who also meet the criteria for separation under other provisions, such as unsatisfactory performance or misconduct (E). The Board found that the record contains sufficient evidence to demonstrate that the Applicant was counseled and warned on four occasion s that his performance was deficient and had two nonjudicial punishment proceedings for his failures to attend remedial physical tra ining and mandatory weigh-ins. The Board determined that any seeming inconsistency between LtCol K_’s disciplinary and administrative actions regarding Applicant in 1998 and any statement contained in his current letter in support of the Applicant’s issue before the NDRB as primarily a function of the passage of time. The Board determined that events documented in Applicant’s service record at the time accurately reflected the Applicant’s conduct. The Applicant’s record fits the criteria for administrative separation on the basis of unsatisfactory performance and relief is not warranted.

When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as honorable. Characterization of service as general (under honorable conditions) 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 3 nonrecommendations for promotion, 4 retention warnings and three nonjudicial punishment proceedings for violations of Articles 86 and 123a of the UCMJ. 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. The NDRB advises the Applicant that certain serious offenses warrant separation from the Marine Corps in order to maintain proper order and discipline. Violation of Article 123a is considered a serious offense and a punitive discharge is authorized if adjudged at a special or general court-martial. Relief is not warranted.

The Applicant’s discharge characterization accurately reflects his service to this country. Normally, to permit relief, a procedural impropriety or inequity must have existed during the period of enlistment in question. No impropriety or inequity occurred during the Applicant’s enlistment. Additionally, 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 service. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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. The Applicant provided a letter of recommendation from a former employer and evidence that he donated a kidney to his father, as documentation of post-service accomplishments. The Board recognized the significance of the Applicant’s actions in donating an organ. However, the Applicant's overall 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, evidence of drug free existence, 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 Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

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 6206, UNSATISFACTORY PERFORMANCE , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 Aug 95 to 31August 2001.

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 .

D. 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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