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

ex-PFC, USMC
Docket No. MD01-00074

Applicant’s Request

The application for discharge review, received 001017, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010406.  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, authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  I G___ G____ (576040590), am requesting an upgrade from General OTH to Honorable Discharge.  I am willing to go back into the military to finish off my enlistment rather than the Honorable discharge be given to me.  As I have been living in the Civilian Life I have come to miss the military life.  Only if I were given another chance I would start from ground zero and progress in the ranks.  Is their anything I can do to re-enlist in the military.  Thank you very much.

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		940922 - 950612	COG

Period of Service Under Review:

Date of Enlistment:  950613		Date of Discharge:  980827

Length of Service (years, months, days):

	Active:  03  02  15
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  50

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.00 (5)		Conduct:  3.9(5)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, Rifle Marksmanship Badge 

Days of Unauthorized Absence:  3 

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:

960402:	Counseled for deficiencies in performance and conduct.  [Conforming to order and discipline as set forth by Marine Corps standards, specifically lack of proper grooming standards, disrespectful communication to NCO's, and failure to be at appointed place of duty] Specific recommendation for corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

960704:	NJP for violation of UCMJ, Article 86: Absent from your appointed place of duty, at 1730, 960613 Field Day Formation.
	Award:  Forfeiture of $490.00 per month for 1 month, extra duty for 45 days.  Not appealed.

970828:	NJP for violation of UCMJ, Article 86: Absent from your appointed place of duty on or about 970630 to 970702 [3days], violation of UCMJ Article 91: Used abusive and disrespectful language toward Cpl S. J. H_____.
	Award:  Restriction for 45 days (suspended for 4 months), extra duty for 45 days, reduction to E-2 (suspended for 4 months).  Not appealed.

970904:	Counseled for deficiencies in performance and conduct.  [Unauthorized use of government quarters for his wife and 9 months old child in the (BEQ) Bachelor Enlisted Quarters, Bldg 22212 Rm #224, from 1900 on 970518 to 1545 on 970519.  SMN demonstrated a willful disregard of BEQ regulations with his actions] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

971009:	NJP imposed and suspended on 970828 for a period of 4 months is hereby vacated and the punishment order executed.

980107:	Applicant refused Medical Officer's evaluation.
 
980226:	NJP for violation of UCMJ, Article 92: Failed to obey a order given by LtCol S____, Commanding Officer, to remain in barracks until the next work day.
	Award:  Restriction for 60 days.  Not appealed.

980408:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

980511:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

980714:	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 continuous misbehavior and your inability to conform to regulations and orders. 

9808	SJA review determined the case sufficient in law and fact [NOT DATED].

980821:	GCMCA [Commanding General, 3d Marine Aircraft Wing] 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 980827 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 considering the applicant’s request to be allowed to reenlist the following is provided for the applicant’s information.  Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reentry into the naval service or any other of the Armed Forces.  The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy or Marine Corps.  Reenlistment policy is promulgated by the Commandant, United States Marine Corps, Code MMEA, 3280 Russell Road, Quantico, VA 22134.  A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  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.  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 3 occasions for violations of the Uniform Code of Military Justice (UCMJ).  The applicant’s misconduct included unauthorized absence, failure to obey lawful orders, and disrespect.  The applicant’s record also reveals multiple adverse counseling entries for misconduct and failure to obey rules and regulations.  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 honorable characterization of service.  An upgrade to honorable would be inappropriate.  Relief is therefore denied.

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.  No such error or injustice is evident in the applicant’s service record.  
Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  At this time the applicant has not provided sufficient documentation of good character and conduct.  Therefore no relief will be granted.  The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is highly recommended but not mandatory.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 Aug 95 until Present. 

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 92, failure to obey a lawful order or regulation.

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