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

 ex-PFC, USMC
Docket No. MD01-00328

Applicant’s Request

The application for discharge review, received 010124, 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 010822.  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. 6210.2.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  My discharge was inequitable because it was based on a previous driving incident.
The new CO at the time related my situation to a personal experience in his life, which led to my wrongful discharge.

Documentation

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

Copy of DD Form 214 (3 copies)

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		920201 - 930505	COG

Period of Service Under Review:

Date of Enlistment:  930506		Date of Discharge:  961120

Length of Service (years, months, days):

	Active:    03  06  15
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  43

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (10)			Conduct:  3.8 (10)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

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. 6210.2.

Chronological Listing of Significant Service Events:

940207:	Counseled for deficiencies in performance and conduct.  [Wearing an earring while on liberty, and not following the uniform regs].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940511:	NJP for violation of UCMJ, Article 134:
Specification: Wrongfully behaved before a sentinel, to wit: throwing firecrackers at her on 22Apr94.
Awarded forfeiture of $450.00 per month for 2 months, restriction and extra duties for 45 days.  Forfeiture suspended for 6 months.  Not appealed.

940617:	Counseled for deficiencies in performance and conduct.  [Speeding and receiving a one-year suspension on my civilian drivers license].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950321:	NJP for violation of UCMJ, Article 86:
Specification: Unauthorized absence 0731, 13Mar95 to 0001, 14Mar95.
Violation of UCMJ, Article 92:
Specification: Violate BnO P5560.2J, by driving on a revoked state driver's license.
Awarded forfeiture of $497.00 per month for 2 months, correctional custody for 30 days.  Not appealed.

960730:	NJP for violation of UCMJ, Article 90:
Specification: Willfully disobeyed Major's command not to drive.
Violation of UCMJ, Article 92 (2 specs):
Specification 1: Violated MARCORBASESJAPANO P11240.1B, to wit: driving without a license.
Specification 2: Violated MARCORBASESJAPANO P11240.1B, to wit: driving without insurance.
Awarded forfeiture of $490.00 per month for 2 months, restriction and extra duties for 45 days, reduction to PFC.  No indication of appeal found in service record.

960801:	Counseled for deficiencies in performance and conduct.  [Willful disobedience of a superior officer.  Violation MARCORBASESJAPANO P11240.1B, driving without a valid driver's license.  Violation MARCORBASESJAPANO P11240.1B, driving without insurance].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960924:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.

960925:	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.

960925:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.  The factual basis for this recommendation was repeated incidents of misconduct.  “ In his short time in the Marine Corps, he has received three nonjudicial punishments and four counseling entries on page 11 of his service record…By his actions he has demonstrated that he has no potential for further service.”

961008:	SJA review determined the case sufficient in law and fact.

961015:	GCMCA [Commanding General, III Marine Expeditionary Force] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 961120 under other than honorable conditions for misconduct due to minor disciplinary infractions (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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 (C and D).

The applicant states that his discharge is inequitable because it was based on a previous driving incident.  The Board disagrees.  The applicant was discharged for a pattern of misconduct based upon three nonjudicial punishments and two other derogatory official counseling records that clearly establish a pattern of misconduct, not just the last set of Battalion level nonjudicial punishment the applicant received prior to separation proceedings.  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.  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 95until Present. 

B.  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.  

C.  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.

D.  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