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USMC | DRB | 2006_Marine | MD0600778
Original file (MD0600778.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. MD06-00778

Applicant ’s Request
The application for discharge review was received on 20060517 . 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 designated the State or Regional Veterans’ Office as the representative on the DD Form 293.
Decision

A documentary discharge review was conducted in Washington, D.C. on 20070223 . 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 U nder Other Than Honorable Conditions by reason of misconduct due to a pattern of misconduct.


PART I - ISSUES AND DOCUMENTATION

Applicant Issues
The Applicant is claiming he did not know he was getting an other than honorable discharge.

The Applicant is requesting an upgrade for medical benefits.

The Applicant is claiming post service equity.
Documentation
In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:
Applicant ’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19930818 - 19940628       COG
         Active: None
Period of Service Under Review :
Date of Enlistment: 19940629              Date of Discharge: 19980810

Length of Service (years, months, days):

 Active: 04 01 12 (Does not exclude lost time.)
          Inactive: None

Time Lost During This Period (days):
         Unauthorized absence: 100 days
         Confinement:              24 day s

Age at Entry: 18
Years Contracted: 4
Education Level: 12                                 AFQT: 51

Highest Rank: PFC                           MOS: 3533 (Logistics Vehicle System
                                     Operator)

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.1 ( 12 )                                Conduct: 3.8 (12 )
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Rifle Marksmanship Badge/ N ational Defense Service Medal /Meritorious Mast


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 :

950322 :  NJP for violation of UCMJ, Article 86: Failed to go to appointed place of duty on 2000, 950318 and remained absent until 0900, 950319.
         Award: Forfeiture of $ 199.00 per month for 1 month, restriction and extra duty for 14 days. Forfeiture suspended for 6 months. Not appealed.
950629:  Counseling: Advised of deficiencies in performance and conduct ( Your unprofessional conduct as evidenced by alteration of your identification care for the purpose of purchasing alcohol, being under the legal drinking age of 21 years, on 950622. ), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
950812:  Applicant to unauthorized absence at 0936.

 951109:  Applicant apprehended by Sheriff’s Department, Alcorn County, MS at 1026, 951109 and returned at 2000 ( 89 days/apprehended).
951119:  The mark of desertion for the absence commencing 950812 is hereby removed as erroneous. UA terminated by apprehension.

 951206 :  NJP for violation of UCMJ, Article 86: UA 0936, 950812 to 1025, 951109.
         Award: Forfeiture of $ 400. 00 per month for 2 month s , restriction for 45 days, reduction to E-1 . Forfeiture for 1 month suspended for 6 months. Not appealed.
951206:  Counseling: Advised of deficiencies in performance and conduct ( Your failure to report to your unit at 0936, on 950812 and your remaining in an unauthorized absence status until 1026, 951109. ), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
960220:  Applicant to unauthorized absence at 1220.

 960302:  Applicant from unauthorized absence at 1743 ( 11 days/surrendered).
960304:  Counseling: Advised of deficiencies in performance and conduct ( Unauthorized absence, specifically on 1200, 960220 to 1143, 960302. ), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
960318 :  NJP for violation of UCMJ, Article 86: UA (AWOL) from 1200, 960220 to 1743, 960302.
         Award: Forfeiture of $ 437.00 per month for 2 month s , restriction and extra duty for 45 days. Not appealed.
970630 :  NJP for violation of UCMJ, Article 91 (2 specs):
         Specification 1: Disrespectful in language towards Cpl on 0700, 970504.
         Specification 2: Failure to obey lawful order issued by Cpl C and Cpl G_ to continue to run in the PT formation on 0700, 970504.
         Award: Forfeiture of $ 505. 00 per month for 2 month s , restriction and extra duty for 45 days, reduction to E- 2 . Not appealed.

 971009 :  NJP for violation of UCMJ, Article 134 : Dishonorably fail to pay JayHawk Finance Company in the sum of $5,623.15 from October 1996 to October 1997.
         Award: Forfeiture of $ 450. 00 per month for 2 month s , restriction and extra duty for 45 days, reduction to E- 1 . Forfeiture suspended for 6 months. Not appealed.
971017:  Counseling: Advised of deficiencies in performance and conduct ( Continued failure in managing your finances. Your attitude of disrespect toward NCO’s and your continued unauthorized absence. ), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
980612 :  Special Court-Martial.
          Charge I: violation of the UCMJ, Article 92 (2 specs):
         Specification 1: Violate MCO 1020.24 by having a tongue ring in his mouth on 980429.
         Specification 2: Failure to obey a lawful order issued by Sgt to remove the ring from his tongue on 0745, 980429.
         Charge II: violation of the UCMJ, Article 86:
         Specification: On 980526 Pvt was UA from work and did not show up until 0615, 980527.
          Finding: to Charge I and II and the specifications thereunder, guilty.
          Sentence: Confinement for 30 days.
         CA action 980612: Sentence approved.
986012:  Applicant to confinement.

 980630:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct . The factual basis for this recommen dation was your past misconduct, i.e. your 4 page 11 entries, 5 nonjudicial punishments and 1 summary c ourt-martial. Applicant informed the least favorable character of service possible was as under other than honorable conditions.
980630:  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.

980630:  Commanding Officer recommended Applicant ’s discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct .
UNDATED:         Applicant ’s statement.

 980705:  Applicant from confinement.
980728 :  SJA review determined the case sufficient in law and fact.

 980730 :  GCMCA, Commanding General, 2d Force Service Support Group , directed the Applicant 's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19980810 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 claims he did not know he was getting a n o ther than honorable discharge. When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. Characterization of service as under other than 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 the award of nonjudicial punishment (NJP) on 5 occasions and one special court-martial hearing for violations of the Uniform Code of Military Justice (UCMJ). The Applicant’s misconduct included Article 86 (Unauthorized absence), 91 (Insubordinate conduct toward a noncommissioned officer) and Article 134 (Debt, dishonorably failing to pay). The Applicant’s conduct, which form the primary basis for determining the character of his service, reflect his misconduct, and fall below that required for an honorable characterization of service. An upgrade to honorable would be inappropriate. Furthermore, the Applicant was notified of intended recommendation for discharge under other than honorable conditions on 19980630. Also on 19980630, the Applicant elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation. Relief denied.

The Applicant is requesting an upgrade for medical benefits. 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 of the propriety and equity of the discharge.

The Applicant is claiming post service equity. 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 the Marine Corp. 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, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided any post-service documentation to consider mitigating the misconduct that resulted in the characterization of discharge. 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. 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 [e.g., 86, unauthorized absence for more than 30 days].
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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction . You should read Enclosure (5) of the Instruction 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 Instruction 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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