DEPARTMENT OF THE NAVY 
 NAVAL DISCHARGE REVIEW BOARD (NDRB)
                     DISCHARGE REVIEW
                   DECISIONAL DOCUMENT

ex-Pvt, USMC
Docket No. MD00-01047

Applicant’s Request

The application for discharge review, received 000913, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested a personal appearance hearing before a traveling panel closest to (left blank).  The applicant did not list any representative on the DD Form 293.  Subsequent to the application, the applicant converted to a documentary discharge review.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010308.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct-Pattern of misconduct (admin discharge board required but waived), authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  To whom it may concern;

I am asking that my discharge be changed due to the existing factors at that time.  One being my age and inexperience to handle personal matters away from work.  At the time, I allowed personal matters to cloud my judgement.

And second of all, After I was released from the brigg in Camp Pendleton, I was sent directly back to my unit in 29 Palms even though my warrant officer and I did not get along at all.

I am not here to point fingers or to say I was railroaded out of the Corps.  I was wrong at the time for what I've done, all I ask for today s a chance to prove that I have matured as a person and I am truly honered to have been in the Marine Corps.

Documentation

In addition to the service record, the following additional documentation, submitted by the applicant, was considered:

Statement from applicant dated December 9, 2000

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Active:   None
	Inactive: USMCR(J)		830720 - 840709	COG

Period of Service Under Review:

Date of Enlistment:  840710		Date of Discharge:  860709

Length of Service (years, months, days):

	Active:    02  00  00
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  44

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  NMF			Conduct:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  None 

Days of Unauthorized Absence:  10 

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct-Pattern of misconduct (admin discharge board required but waived), authority:  MARCORSEPMAN Par. 6210.3.

Chronological Listing of Significant Service Events:

850722:	Counseled for deficiencies in performance and conduct.  [Total lack of dedication and loyalty for the Marine Corps.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

851202:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 86 (2 specifications):
	Specification 1: Unauthorized absence from 0530, 18Sep85 to 1630, 27Sep85 (9 days)
	Specification 2: Unauthorized absence from 0830, 2Oct85 to 0630, 3Oct85 (22 hours).
	Charge II:  violation of the UCMJ, Article 121:
	Specification: Wrongfully appropriate a 1982 Yamaha motorcycle on 17Sep85.
	Findings: to Charge I and II and specifications thereunder, guilty.  
	Sentence:  CHL for 3 months, forfeiture of $200.00 per month for 3 months, reduction to Pvt.
	CA 860114:  Sentence approved and ordered executed.

860314:	Counseled for deficiencies in performance and conduct.  [Your lack of initiative and enthusiasm.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  [Signed by the applicant on 860320.]

860320:	Counseled for deficiencies in performance and conduct.  [Alcohol related incident.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

860429:	NJP for violation of UCMJ, Article 86 (2 specs):
Specification 1: Unauthorized absence from 1300, 20Mar86 to 0530, 21Mar86.
Specification 2: Unauthorized absence from 1300, 21Mar86 to 2100, 22Mar86 (1 day).
Violation of UCMJ, Article 91:
Specification: Violated a lawful order on 1100, 22Mar86, by driving under suspension after his driving privileges were revoked aboard MCAGCC.
Awarded forfeiture of $200.00 per month for 2 months, restriction and extra duties for 45 days.  Not appealed.

860514:	Counseled for deficiencies in performance and conduct.  [Your persistent pattern of misconduct, frequent need for counseling and repeated discipline.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

860521:	NJP for violation of UCMJ, Article 86 (2 specs):
Specification: Unauthorized absence from 1100 to 1800, 12May86.
Violation of UCMJ, Article 134:
Specification: While undergoing Battalion restriction, breached the restraint imposed by going to the Marine Corps Exchange on 1215, 12May86.
Awarded forfeiture of $200.00 per month for 2 months, restriction and 
extra duties for 45 days.  Not appealed.

860606:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

860606:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  The factual basis for this recommendation was failure to conform to the standards of the Marine Corps.  During this, your initial enlistment, you have been the subject of nonjudicial punishment on two occasions for violations of the Uniform Code of Military Justice and a conviction by a special court-martial.  On 29 April 1986, you received nonjudicial punishment for violation of Articles 91 and 86, Uniform Code of Military Justice, for disobeying a lawful order by driving your privately owned vehicle while under a suspension and unauthorized absence.  On 21 May 1986, you received nonjudicial punishment for violation of Article 86 and 134, Uniform Code of Military Justice, for unauthorized absence and breaking restriction imposed at the previous nonjudicial punishment.  On 2 December 1985, you were convicted by a special court-martial of wrongful appropriation and unauthorized absence.  Your lack of self discipline and blatant disregard for the regulations governing the conduct of members of the Naval Service is clearly evidenced by your history of misconduct and accordingly your retention in the Marine Corps is not warranted. 

860609:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

860702:	GCMCA [Commanding General, 7th Marine Amphibious Brigade, Marine Corps Air Ground Combat Center] 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 860709 under other than honorable conditions for misconduct due to a pattern of misconduct (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

In the applicant’s issue 1, The Board found that the applicant’s age, education level, and test scores qualified him for enlistment.  While he may feel that his immaturity was a factor that contributed to his actions, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service.  The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief on this basis is denied.

Relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts.  With respect to a discharge or dismissal adjudged by a court-martial case tried under the Uniform Code of Military Justice, the action of the NDRB extends only to a change in the discharge or dismissal for purpose of clemency. (B, art IV) 
The applicant's case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  The NDRB found the applicant’s service record devoid of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded.  In fact, the Board found the applicant had been afforded thorough and detailed counseling on his deficiencies, beyond that normally provided, and was offered many avenues to correct his pattern of unauthorized absences and deficiencies in attitude, performance and conduct.  Relief on this basis is therefore, denied.

When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as honorable or 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 2 occasions for violations of the Uniform Code of Military Justice (UCMJ), a Special Court-Martial and four adverse counseling entries.  The applicant’s misconduct included unauthorized absences, wrongful appropriation of a motorcycle, alcohol-related offenses and breaking restriction.  The applicant’s conduct and proficiency markings, which form the primary basis for determining the character of his service, reflect his misconduct, and fall below that required for an under honorable conditions characterization of service.

The following is provided for the applicant’s edification.  The NDRB is authorized to consider 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.  However, there is no law or regulation that 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, an error or injustice must be found to have existed during the period of enlistment in question.  In determining whether a case merits a change based on post-service conduct, the NDRB considers the length of time since discharge, the applicant's record of community service, employment, conduct, educational achievements, and family relationships. The applicant's efforts need to be more encompassing than those provided.  The applicant should have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not abusing drugs or alcohol in order for consideration for clemency based on post-service conduct.  At this time the applicant has not provided sufficient documentation of good character and conduct.  Therefore no relief will be granted at this time.  

The applicant is reminded that he remains eligible for a personal appearance hearing provided that an application is received within 15 years from the date of discharge.  Further, the Board strongly encourages the applicant to appear for a personal hearing with the documentation discussed above.  As the applicant’s 15 year suspense is near at hand, he is encouraged to contact the NDRB as soon as possible to schedule a personal appearance.  Representation, while not mandatory, is strongly recommended for a personal appearance before the Board.  This representation need not be a lawyer, but may be any person of stature in the applicant’s community with personal knowledge of his character.  Witnesses and family members to testify on behalf of the applicant are also welcomed to appear before the Board.  
Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210 MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16C), Change 2, effective 15 Apr 84 until 28 Jul 87.

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 86, unauthorized absence for more than 30 days.

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

E.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 “afls14.jag.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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023	

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