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

ex-PFC, USMC
Docket No. MD01-00217

Applicant’s Request

The application for discharge review, received 001211, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant listed Disabled American Veterans as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010906.  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.  After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we continue to note the request of the appealant of an upgrade of his Other Than Honorable discharge to that of Honorable.

A review of the record reflects that the FSM entered military service on June 24, 1997, with participation in the United States Marine Corp., and was effectively discharged from said service on October 22, 1999, by reason of misconduct.

It is the FMS's desire to receive equitable relief of his current discharge, in concert with this request we ask that consideration be given to a General discharge.  As the record reflects the FSM performed his duties well, his behavior was somewhat lacking towards the end and not sufficiently meritorious to warrant the appellant's desired to upgrade to Honorable

During his good period of service the FSM had high proficiency and conduct marks, this information considered in concert with the character references, which notes the FSM to be of good moral character, honest, and hard working since discharge.  Additionally, one statement from the FSM's prior service employer who give testament to his character before and after discharge.  We believe that there was an impropriety by the Unit of record in that they failed to consider the FSM's good service, and once consideration is given that equitable relief maybe provided to the appellant via upgrade to a General discharge.

We ask for the Boards careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the applicant.

Documentation

In addition to the service record (NO DISCHARGE INFORMATION AVAILABLE),  the following additional documentation, submitted by the applicant, was considered:

Character Reference Letter
Employment Reference Letter (2) 
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)		961010 - 970623	COG

Period of Service Under Review:

Date of Enlistment:  970624		Date of Discharge:  991022

Length of Service (years, months, days):

	Active:  02  08  28
	Inactive:  None

Age at Entry:  17 (w/parental consent)		Years Contracted:  4 

Education Level:  12			AFQT:  45

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.9 (7)		Conduct:  3.6 (7)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Expert Badge, AFEM, SSDR, NUC, GCM 

Days of Unauthorized Absence:  None

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:

980113:	NJP for violation of UCMJ, Article 86: Did on or about 0530, 980112, absent himself from his appointed place of duty to wit: A Co, BLT 1/4, and did remain so absent until 0900, 980112.
	Award:  Forfeiture of $242.00 per month for 1 month, restriction and extra duty for 14 days.  Not appealed.

990224:	NJP for violation of UCMJ, Article 92: Failed to obey a lawful order issued by LCpl J.C.B____  to relinquish his Armed Forces Identification card during the Commanding General's authorized Armed Forces Identification card check on or about 990131, violation of UCMJ Article 134: Did on or about 990131 wrongfully possess, with intent to deceive, another's Armed Forces Identification card, to wit: Cpl M____ K. M___.
	Award:  Forfeiture of $260.00 per month for 1 month, restriction and extra duty for 14 days.  Not appealed.

990329:	Counseled for deficiencies in performance and conduct.  [You failed to follow Marine Corps grooming standards, by wearing partial uniform and a ski mask to disguise yourself.  You were blatantly disrespectful towards the Company 1st Sgt, by approaching him with the intention of stalking him.  Your pattern of misconduct is unacceptable behavior and will not be tolerated].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990511:	NJP for violation of UCMJ, Article 91: On or about 0600, 990421 was disrespectful in language toward Cpl C____, a Non-Commissioned Officer, then known by the said Cpl C____ to be a Non-Commissioned Officer, who was then in the execution of his office, by saying "fuck of bitch" or words to that effect.
	Award:  Forfeiture of $260.00 per month for 1 month, restriction and extra duty for 14 days.  Not appealed.

990806:	NJP for violation of UCMJ, Article 92: Did on or about 0447, 990725 fail to obey a lawful written order to wit: Base Order 5000.2H Drinking under the age of 21, by wrongfully consuming alcohol under the age of 21.
	Award:  Forfeiture of $537.00 per month for 2 months, restriction for 60 days, reduction to E-2.  Not appealed.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 991022 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).

 Issue 1.  The applicant requested the Board review his discharge in terms of both equity and propriety, based upon the applicant’s good service and post service conduct. 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 award of nonjudicial punishment (NJP) for offenses triable by court-martial on four occasions and adverse counseling entries on other occasions.  The applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful disobedience of the orders and directives which regulate good order and discipline in naval service, and falls short of that required for an honorable characterization of service.  An upgrade would be inappropriate.  It must be noted that most Marines serve honorably and well and therefore earn honorable discharges.   In fairness to those Marines, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due.   The applicant’s service is equitably characterized as being performed under other than honorable conditions.  Relief is not warranted.
  
Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the applicant’s enlistment.  Additionally, 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 service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  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.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for clemency, based on post-service conduct.  The applicant did not provide sufficient documentation to warrant an upgrade to his discharge.  He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.  Relief denied.

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 91, disrespect toward a noncommissioned officer; and Article 92, failure to obey lawful orders.

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 “afls10.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