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

 ex-Pvt, USMC
Docket No. MD01-00482

Applicant’s Request

The application for discharge review, received 010306, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a record review of discharge.  The applicant did not designate a 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/INVOL DIS (BOARD WAIVED) (PATTERN OF MISCONDUCT), authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  I did have some problems when I was in the Marine Corps, but since I have been discharged I have become an upstanding citizen.  I have been commissioned a Kentucky Colonel and have a great career going for me.

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:   None
	Inactive: USMCR(J)		920318 - 920817	COG

Period of Service Under Review:

Date of Enlistment:  920818		Date of Discharge:  950616

Length of Service (years, months, days):

	Active:  02  09  29 (Doesn't exclude confinement or lost time)
	Inactive:  None

Age at Entry:17(Parental consent)	Years Contracted:  4 

Education Level:  12			AFQT:  67

Highest Rank:  Cpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.91 (12)		Conduct:  3.8 (12)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  1

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/INVOL DIS (BOARD WAIVED) (PATTERN OF MISCONDUCT), authority:  MARCORSEPMAN Par. 6210.3.

Chronological Listing of Significant Service Events:

940728:	Counseled for deficiencies in performance and conduct [Your PRO/CON marks reflect a 3.9/3.9 for period 940201 - 940731 and you are notified of this assignment of a conduct marking less than 4.0 due to several tardy incidents, poor leadership, poor judgement, uttering of two bad checks, and delinquency of payment for DPP].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940802:	NJP for violation of UCMJ, Article 86 (3 Specs): failed to go at the time prescribed to his appointed place of duty, Building FC573, platoon formation on or about 0645, 940701, about 0645, 940707, and about 0530, 940801; violation of UCMJ, Article 92: in that having knowledge of a direct order issued by Sergeant C_, His platoon sergeant, "to check in with him every morning at 0645”, 940707 before formation, "an order" which it was his duty to obey, did willfully disobey the same.
Awarded reduction to E-3 (suspended for 6 months), restriction for 60 days.  Not appealed.

940810:	Counseled for deficiencies in performance and conduct [Your PRO/CON marks reflect a 3.9/3.9 for period 940201 - 940731 and you are notified of this assignment of conduct marking less that 4.0 for tardiness, poor leadership and performance]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940817:	NJP for violation of UCMJ, Article 92:  on or about 8 Aug 94, having knowledge of BO 5353.2, violated same by drinking alcoholic beverages under the age of 21; violation of UCMJ Article 134:  on or about 8 Aug 94, wrongfully altered a Military Identification Card (DOB altered); violation of UCMJ Article 134:  on or about 8 Aug 1994, broke restriction; violation of UCMJ Article 86:  fail to go at the time prescribed to duty at Bldg. H-1, at approximately 0600 on or about 11 Aug 95.
	Award:  Forfeiture of $466 per month for 1 month (suspended 6 months), restriction and extra duty for 00 days, reduction to E-2.  Not appealed.

941006:	NJP imposed and suspended on 940802 for period of 1 month is vacated and punishment is ordered executed this date.

941117:	Counseled for deficiencies in performance and conduct [uttering bad checks].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

941205:	Counseled for deficiencies in performance and conduct [failure to show up at an appointed place of duty on time].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950222:	Summary Court Martial
Charge I:  violation of the UCMJ, Article 86:  On board Marine Corps Base, Camp Lejeune, NC, at or about 0645, on or about 28 Nov 94, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: platoon formation at barracks HP-513, located on board Marine Corps Base, Camp Lejeune, NC.
Findings:  Charge I and specification thereunder, guilty.
Sentence:  Confinement 30 days, reduction to E-1, forfeiture of $395 per month for 1 months.
CA 950222:  Sentence is approved and ordered executed (but execution of that portion of the sentence adjudging forfeiture of $395 pay per month for 1 month is suspended for a period of 6 months, at which time unless sooner vacated, the suspended portion of the sentence will be remitted without further action).

950222:	To confinement.

950318:	Returned to full duty.

950405:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by two battalion level nonjudicial punishments and one Summary Court-Martial.

950405:	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.

950405:	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 is based on two battalion level nonjudicial punishments and one Summary Court-Martial, each of which resulted in a reduction in rank.  He has gone from Corporal to Private in less than 6 months.  

950526:	SJA review determined the case sufficient in law and fact.

950530:	GCMCA [CG, II MarExpFor, MarForLant] 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 950616 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 applicant requested relief based on his post-service conduct.  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.  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 relief 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.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210, Misconduct, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 27 Jun 89 until 17 Aug 95.

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 86, failure to go to place of duty; and Article 92, failure to obey regulations.

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