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

ex-PVT, USMC
Docket No. MD01-00114

Applicant’s Request

The application for discharge review, received 001030, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions.  The applicant requested a documentary record discharge review.  The applicant listed AMERICAN LEGION as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010502.  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 (verbatim)

I though my life was falling apart at the time of my discharge.  Since then I have taken steps to put my life back together and to go forward with my life

1.  I have gotten a divorce.
2.  I have straighten out my financial problems.
3.  I went back to school.  I attended the California Culinary Academy (C.C.A) and graduated with an AA degree.  I have started a new career as a chef. Thank you.

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)		941119 - 941226	COG

Period of Service Under Review:

Date of Enlistment:  941227		Date of Discharge:  980603

Length of Service (years, months, days):

	Active:  03  05  07
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  71

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.38 (5)		Conduct:  4.3 (5)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, AFEM 

Days of Unauthorized Absence:  2 

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:

951023:	Counseled for deficiencies in performance and conduct.  [Violation of Article 86, SNM was to report for duty no later than 0330 on 951011.  SNM failed to show up on time.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

960411:	NJP for violation of UCMJ, Article 121: On or about 960221 through 960302, did wrongfully appropriate LCpl S_____'s calling card number to make numerous amounts of unauthorized phone calls, violation of UCMJ Article 134: SNM obtained services from another Marine under false pretenses.
	Award:  Forfeiture of $400.00 per month for 2 months (suspended for 2 months), reduction to E-2.  Not appealed.

960911:	Counseled for deficiencies in performance and conduct.  [Using poor judgment, and lack of financial responsibility.  SNM went to Nevada without an out of bounds chit, and had no funds, had no arrangements made, nor was the welfare of his stepchild a priority.  While in Nevada, SNM was involved in a vehicular accident, which was determined to be his fault.  Due to the accident, SNM and family had no funds for food, a place to stay, or transportation back to base.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

961125:	Counseled for deficiencies in performance and conduct.  [SNM failed to appear for court on April 1996 which resulted in his driving privileges being suspended in the state.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

970524:	NJP for violation of UCMJ, Article 86:(3 specs), Fail to go at the prescribed time to his appointed place of duty, violation of UCMJ Article 86: UA (AWOL) from 0630, 970505 to 0735, 970507 [2days].
	Award:  Forfeiture of $553.00 per month for 2 months, 45 days restriction to the limits of USS CONSTELLATION (CV-64) without suspension from duty, extra duty for 45 days, reduction to E-2 (suspended for 6 months).  Not appealed.

970717:	NJP imposed and suspended on 970523 for a period of 6 months is hereby vacated and the punishment is ordered executed.

970717:	NJP for violation of UCMJ, Article 86: Failed to go at the prescribed time to restricted Men's Muster at 1630 on 970620, violation of UCMJ Article 86: Failed to go at the prescribed time to restricted Men's Muster at 1800 on 970620, violation of UCMJ Article 86: Failed to go at the prescribed time to restricted Men's Muster at 0630 on 970705.
	Award:  Forfeiture of $505.00 per month for 1 month, 30 days restriction to the limits of the USS CONSTELLATION (CV-64) without suspension from duty, extra duty for 30 days.  Not appealed.

980305:	NJP for violation of UCMJ, Article 86: UA from CO's Alpha Inspection at Brks 22212; Camp Pendleton, CA on or about 0700, 971205.
Awarded forfeiture of $450.00 per month for 1 month (suspended for 4 months), restriction and extra duties for 30 days, reduction to E-1 (suspended for 4 months).  Not appealed.

980408:	Commanding Officer, Marine Wing Support Squadron 372 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. 
980424:  	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

980501:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

980508:	SJA review determined the case sufficient in law and fact.

980511:	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 980603 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).

The Board found that the applicant served in the Marine Corps for 3 years and 5 months of a 4 year enlistment.  The applicant went to NJP on 4 separate occasions and received 3 service record entries counseling him on various offenses.  The applicant’s 4 NJPs clearly establish a pattern of misconduct and the Board finds the offenses serious enough to warrant an other than honorable discharge.  

In the applicant’s issues 1 through 3, the Board found that although the applicant may have gotten a divorce, straightened out his financial problems and went back to school, this was not enough to upgrade his discharge to honorable.  There is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the Service.  However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (D).  Those factors include, but are not limited to, the following:  evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct.  At this time, the applicant has not provided any documentation of good character and conduct.  Therefore no relief will be granted.  The applicant is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15-years from the date of discharge.

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 134, obtaining services under false pretenses.

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