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USMC | DRB | 2006_Marine | MD0601076
Original file (MD0601076.rtf) Auto-classification: Denied

ex-PFC, USMC
MD06-01076

 Current Discharge and Applicant’s Request :

Application Received:                               20 060809
Narrative Reason for Separation:                           MISCONDUCT DUE TO
Character of Service:                                GENERAL
Discharge Authority :                                MARCORSEPMAN 6210.2
Last Duty Assignment/ Command at Discharge:       2D BATTALION 4 TH MARINES

Applicant’s Request:
          Narrative Reason change:                           yes -UNDECLARED
         Characterization chang e to:               
         Review Requested :                          
Representation:                                             


Decision:

Date of Decision:                                            200706 28
Location of Board:                                  Washington D.C.
 Complete Service Record:                                    YES
Complete Medical Record:                           YES
Complete Discharge Package:                        YES
Regarding propriety, the Board found the discharge:     
Regarding equity, the Board found the discharge:         EQUITABLE

 By a vote of the Characterization shall UNDER HONORABLE CONDITIONS (GENERAL)
By a vote of the Narrative Reason shall MISCONDUCT-MINOR DISCIPLINARY INFRACTIONS (WITH
                                                      ADMINISTRATIVE DISCHARGE BOARD)



Summary of Service :

Prior Service:
 Inactive: USMC R (DEP)                               19900519 - 19900904
Active: NONE
Period of Service Under Review :
Date of Enlistment:                                 19900905
Years Contracted :                                   ;      
Date of Discharge:                                  19940629
Length of Service:                                  03 Yrs 09 Mos 25 Days Does not exclude lost time, if any.
Time Lost During This Period:                      10 IHCA
Days Unauthorized Absence:                         NONE
Days Confinement:                                   NONE

Education Level:                                   
Age at this Enlistment:                                     19
AFQT:                                                 39
MOS:                                                   3381
Highest Rate/Rank:                                   LCPL

Performance Evaluation Averages (number of marks):
 P roficiency :                                         4.4 (10)
Conduct :                                              3. 6 (10)

Awards and Decorations (as listed on the DD Form 214):
NATIONAL DEFENSE SERVICE MEDAL, MERITORIOUS MAST, SEA SERVICE DEPLOYMENT RIBBON, RIFLE SHARPSHOOTER


Service Record Entries Related to Characterization of Service or Narrative Reason for Separation

19910312 :        NJP for violation(s) of UCMJ:
         Article 92: On or about 2230, 19910225 failed to obey the lawful order of Private F_.
         Article 128 : On or about 2230, 19910225 assault Private F_.
         Article 134: On or about 2230, 19910225 wrongfully use disrespectful language.
          Award: Forfeiture of $ 3 00 for 2 months, restriction and extra duty for 20 days , reduction to E-1. Forfeiture suspended for 3 months.
         No t appealed .

19910312:        Counseling: Advised of deficiencies in performance and conduct . Found guilty of UCMJ Article s 92 , 128 , and 1 34 at Company NJP. N ecessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

 19910319:        Forfeiture of pay awarded at NJP on 19910312 vacated.
19910326 :        NJP for violation(s) of UCMJ:
         Article 92: On or about 0807, 19910315 disobeyed a lawful order.
         Award: Forfeiture of $ 3 00 for 1 month.
          Not appealed.

 19910326:        Counseling: Advised of deficiencies in performance and conduct . F ound guilty at Company NJP on 19910326 of Article 92 of UCMJ. N ecessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

 19930213:        Applicant arrested by Joshua Tree Police Department at 0251, on charges of assault with a deadly weapon.

19930222:        Applicant released from civilian authorities. Preliminary hearing set for 19930224. Pending charges: Assault with a deadly weapon.

 199304 16 :        NJP for violation(s) of UCMJ:
         Article 86 : On or about 0200, 19930213 absent from appointed place of duty.
         Award: Forfeiture of $ 233 for 1 month, restriction and extra duty for 14 days.
         Ap pealed on 19930408.

19931116 :        NJP for violation(s) of UCMJ:
         Article 128: On or about 19930820 assault Cpl L_ by striking in the face with a closed fist.
         Article 134 : On or about 19930820 disorderly.
         Award: Forfeiture of $ 233 for 1 month, restriction and extra duty for 14 days. Forfeiture suspended for 6 months.
         Not appealed.

 19940224 :        NJP for violation(s) of UCMJ:
          Article 92 (2 specifications):
         Specification 1: On or about 0200, 19940107 disobey a lawful order by not having a .25 Cal pistol registered on base.
         Specification 2: On or about 0200, 19940107 disobey a lawful order by having a .25 Cal pistol with a loaded magazine inserted in the trunk of his car.
          Award: Forfeiture of $ 466 for 2 month s , restriction and extra duty for 45 days , reduction to E-2.
         Ap pealed on 19940224.



Elements of Discharge: [ IN VOLUNTARY]

Discharge Process :                                 
Date Notified :                                        19940310
Basis for Discharge :                               

Least Favorable Characterization:                         
Commanding Officer’s Intended Recommendation :   
Record Supports Narrative Reason :                          YES
Date Applicant R esponded to N otification:                 19940316
Rights E lected at N otification :
Consult with Counsel                       WAIVED
Administrative Board                      
Obtain Copies                             
Submit Statement(s) (date)                               

Administrative Board Date:                         19940422
Findings and Recommendations :                     
Basis for Discharge Supported:            MISCONDUCT DUE TO ; ; Vote: 3 TO 0
Separation Warranted:                               ; Vote: 3 TO 0
Recommend ation Regarding Separation:              ;
Recommendation Regarding Characterization:       ; V ote: 2 TO 1

Recommendation of Commanding Officer (date):     ( 19940317 )
SJA review (date):                                   ( 19940616 )
Discharge directed by (date):     COMMANDING GENERAL, 2D MARINE DIVISION, MARFORLANT ( 19940620 )
Narrative reason directed :                                   MISCONDUCT DUE TO
Characterization directed:                                  UNDER HONORABLE CONDITIONS ( )
Date Applicant Discharged:                         19940629


Additional Information Considered by Board

 Type of d ocumentation submitted by t he Applicant and considered by the Board
        Document Type                                        #Pages
 Related to Period of Service Under Review :
          Service/Medical Record :                              4
         Other Period of Service:                                    0
Related to Post-Service Period:
          Community Service :                                   0
         Education :                                           2
         Employment :                                          0
         Health /Medical :                                       0
         Character Statements:                               2
         Criminal Records Checks:                                    0
         Additional Statements from Applicant:             1
Other Documentation      (Describe Below)                 2

Total Number of Pages:                              11
D escription of Other Documentation:
        Applicant's resume

Applicant’s Issues, as summarized by the Board:
 1. Change re-enlistment code.
2. I nequity of Character of Service.
3. Inequity for Narrative Reason for Separation.
4 . Post service

Issue 1: The Board determined that this Issue is not an issue which can form the basis for relief for the Applicant or that the Board did not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to page one of the Addendum regarding this issue.
        
Decisional Issues:
 The Board accepted Issues 2- 4 for consideration.

Issue 2 (Equity). When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. An under honorable conditions (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 conduct during the current period of service, which forms the primary basis for determining the character of his service was marred by two retention warning s and five nonjudicial punishments (NJP) for violations of the Uniform Code of Military Justice (UCMJ) Articles 86, 92, 128, and 134. Violation of UCMJ Article 92, Failure to obey an order and Article 128, Assault are considered serious offense s for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial. An upgrade to honorable would be inappropriate. Relief denied.

Issue 3 (Equity). When a Marine has a documented series of at least three minor disciplinary infractions during the current enlistment, of a nature which have been or would have been appropriately disciplined under Article 15, UCMJ, administrative separation proceedings are authorized using Minor Disciplinary Infractions as the basis for discharge. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. An change in the Narrative Reason would be inappropriate. Relief denied.

Issue 4 (Equity). 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 two character statements and proof of secondary educational achievements as documentation of post-service accomplishments. The Applicant's efforts need to be more encompassing than those provided. For example, the Applicant could have produced evidence of a verifiable and continuous employment record, documentation of community service, and certification of non-involvement with civil authorities. The Board determined that the documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of discharge. Relief denied.

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Medical Record Entries, Elements of Discharge and evidence submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable.


Minority Opinion

 None
Pertinent Regulation/Law

 A. The Marine Corps Separation and Retirement Manual, (MCO P1900.16 D ), effective 27 Jun 1989 until 30 June 1994 , Paragraph 6210, MISCONDUCT.
B. 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 V, Para 502, Propriety and Para 503, Equity.

 C. 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 92, Failure to obey an order, and Article 128, Assault .



ADDENDUM: Information for the Applicant
Complaint Procedures : 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 ” .

Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the 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. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service 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.

Employment / Educational Opportunities : 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.

Reenlistment/ RE-code: Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.
Medical Conditions and Misconduct : DoD disability regulations do not preclude a disciplinary separation. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or “PTSD.” Only the Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - 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 may 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.

Issues Concerning Bad-Conduct Discharges (BCD ) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a court-martial, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed.

Board Membership: 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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