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

ex-Pvt, USMC
Docket No. MD01-00290

Applicant’s Request

The application for discharge review, received 010111, 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 010629.  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 have changed my previous request from General to Honorable.  The VA rep. At Darton College has advised me that a Honorable discharge is needed for educational benefits.  A DD-214 should be on file with my last DD-293 and I have included the performance sheets requested from the board.  Other character references are included. I am currently enrolled in college, doing well in my accounting classes, and arriving for all events on time.  I have received recognition for my punctuality at work (see attached card).  The 1st Lt's reasons for continuous write-ups and taking me to the Co was in her words being tardy by 2, 3 & 4 minutes.  The initial incidents were related to my mother's illness, which the 1st Lt was aware of.  I am trying to make it clear that the pattern of misconduct was time-related only.  There were no incidents that I disrespected or was 'uncoming of a  Marine'.  Due to my mother's improvement, I am now punctual for all occasions.  Had it not been for the situation I was in, having to choose between assisting  my mother and being 2 minutes later, I would still be an active Marine.

Documentation

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

Statement from applicant
Copy of donation receipts
Copies of proficiency/conduct marks recommendations
Copy of medical pages
Copy of marriage license
Copy of champion award dated April 12, 2001

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		960604 - 970602	COG

Period of Service Under Review:

Date of Enlistment:  970603		Date of Discharge:  000316

Length of Service (years, months, days):

	Active:    02  09  14
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  67

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  NMF*			Conduct:  NMF*

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR

Days of Unauthorized Absence:  None

*No marks found in service record
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:

990610:	Counseled for deficiencies in performance and conduct.  [Failure to report to appointed place of duty on two occasions, 23Apr99 and 26Apr99.  False official statements made to a Commissioned Officer on 23Apr99 regarding your whereabouts.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

990628:	Applicant informed eligible but not recommended for promotion to Corporal for the promotion period Jul/Aug/Sep 99 because of page 11.  Applicant chose to make a rebuttal.

990818:	NJP for violation of UCMJ, Article 86:
Specification: Unauthorized absence 0616-0715, 18Aug99, to wit: unit physical training.
Awarded correctional custody for 30 days, reduction to PFC.  Reduction suspended for 6 months.  Not appealed.

000124:	NJP for violation of UCMJ, Article 86:
Specification: Unauthorized absence 0631 to 1050, 17Dec99.
Awarded forfeiture of $502.00 per month for 2 months, restriction and extra duties for 45 days, reduction to Pvt.  Forfeiture suspended for 6 months.  Not appealed.

000224:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

000307:  	Applicant advised of his rights and having consulted 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.

000307:	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 on 10 June 1999, you received counseling for failure to report to your appointed place of duty on two occasions.  On 18 August 1999, you received a nonjudicial punishment for violation of Article 86, UCMJ.  On 24 January 2000, you received your second nonjudicial punishment for violation of Article 86, UCMJ. 

000308:	SJA review determined the case sufficient in law and fact.

000316:	GCMCA [Commander, Marine Corps Logistics Bases, Albany] 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 000316 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 issues, the Board found no substantiation of his argument that his mother’s illness caused him to be late to work on several occasions, precipitating adverse counseling and NJP.  The Board will not grant relief on this basis.

The applicant’s other issues are non-decisional for this Board.  The NDRB is under no obligation to upgrade a discharge to Honorable in order for the applicant to receive VA benefits.  Relief is accordingly denied.

Further, the Board disagrees with the applicant’s assertion that his overall service record warrants an honorable discharge.  When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as honorable.  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 two 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 to honorable 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. (XX, Part IV)  While the NDRB respects the fact that the applicant tried, his service is equitably characterized as being performed under other than honorable conditions. Relief is not warranted.

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.  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. 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.  The applicant's efforts need to be more encompassing than those provided.  In the applicant’s statement, he indicated that character references were included in his package, however, none were present.  The applicant should have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities 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.  

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.  Representation at a personal hearing is not mandatory, but is strongly recommended.  This representation need not be a lawyer, but may be any person of stature and good standing in the community including the various veterans’ organization.

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 [e.g., 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 “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