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

 ex-LCpl, USMC
Docket No. MD01-00513

Applicant’s Request

The application for discharge review, received 010312, 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.  Subsequent to the application, the applicant converted the case to a personal appearance hearing and obtained representation from the American Legion.

Decision

A personal appearance discharge review hearing was conducted in Washington, D.C. on 020313.  After a thorough review of the testimony, 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 three to two that the character of the discharge shall not change.  The discharge shall remain:  UNDER OTHER THAN HONORABLE CONDITIONS/ Misconduct-Pattern of misconduct (admin discharge board required but waived), authority: MARCORSEPMAN 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.	This former member opines that his post-service conduct has been sufficiently creditable to warrant the Board’s clemency relief as authorized under provisions of SECNAVINST 5420.174C, enclosure (1), paragraph 3.

Documentation

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

Copy of DD Form 214
Copy of meritorious mast dated January 8, 1985
Letter from applicant dated June 14, 2001
Letter from applicant's wife dated June 14, 2001
Character reference dated May 18, 2001
Character reference undated
Character reference undated
Copy of concern and appreciation bonus dated May 22, 1998
Letter of reference dated February 13, 2002
Character reference dated 21 January, 2001

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		830315 - 830605	COG

Period of Service Under Review:

Date of Enlistment:  830606		Date of Discharge:  860623

Length of Service (years, months, days):

	Active:    03  00  18
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  65

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (3)			Conduct:  4.1 (3)

Military Decorations:  None

Unit/Campaign/Service Awards:  MM

Days of Unauthorized Absence:  45

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct-Pattern of misconduct (admin discharge board required but waived), authority:  MARCORSEPMAN Par. 6210.3.

Chronological Listing of Significant Service Events:

840421:	Applicant to unauthorized absence 0730, 21Apr84.

840531:	Applicant from unauthorized absence 1120, 31May84 (40 days/surrendered).

840621:	NJP for violation of UCMJ, Article 86:
Specification: Unauthorized absence 1500, 19Apr84 to 1000, 31May84 (42 days/surrendered).
Awarded forfeiture of $200.00 per month for 2 months, restriction and extra duty for 20 days, reduction to Pvt.  Not appealed.

850222:	NJP for violation of UCMJ, Article 86:
Specification: Unauthorized absence 0630, 19Feb85 to 2300, 20Feb85 (1 day).
Awarded forfeiture of $162.00 for 7 days, restriction and extra duty for 14 days.  Not appealed.

850301:	Counseled for deficiencies in performance and conduct.  [Two nonjudicial punishments.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

860414:	NJP for violation of UCMJ, Article 91:
Specification: Willfully disobeyed order of SSgt on 0630, 7Apr86, to wit: to be at Battery area at 0630.
Violation of UCMJ, Article 86:
Specification: Unauthorized absence 0630, 7Apr86 to 0700, 9Apr86 (2 days).
Awarded forfeiture of $196.00 per month for 1 month, restriction for 7 days, correctional custody for 7 days.  Restriction and correctional custody suspended for 6 months.  Not appealed.

860501:	Vacate suspended restriction for 7 days.  Correctional custody for 7 days was not vacated.

860501:	NJP for violation of UCMJ, Article 86:
Specification: Unauthorized absence from 1000, 28Apr86 to 0630, 29Apr86.
Awarded forfeiture of $183.00 per month for 1 month, restriction for 7 days.  Not appealed.

860509:	Counseled for deficiencies in performance and conduct.  [Having a knife concealed in his boots.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

860519:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

860520:	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.

860520:	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 four nonjudicial punishments. 

860529:	Counseled for deficiencies in performance and conduct.  [Failed to check out properly with _____ and be more punctual.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

860602:	SJA review determined the case sufficient in law and fact.

860616:	GCMCA [Commanding General, 2d Marine Division, FMF] 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 860623 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’s discharge characterization accurately reflects his service to his country. Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  The Board could find no such error or injustice evident 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, evidence 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 relief, based on post-service conduct.  While the applicant had accomplished much since his discharge, the Board found that the information available to the Board for consideration was not sufficiently creditable to warrant relief.  Relief is therefore denied.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210 MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16C), Change 2, effective 15 Apr 84 until 28 Jul 87.

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, unauthorized absence for more than 30 days; Article 91, disobedience of lawful order of a staff non-commissioned officer.

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