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

 ex-PFC, USMC
Docket No. MD01-00609

Applicant’s Request

The application for discharge review, received 010402, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  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 obtained representation from the Veterans of Foreign Wars.

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. 6210.6.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  I would like the board to take notice of my years of good conduct.  I would also like them to note that after my release from the brig I continued to serve with out pride or prejudice.  I did not let the set back affect my work or loyalty to the Marine Corps, I would also like to say as long as I am able I will continue to serve my country.  Even if it means not being able to be a Marine.

2.  We ask the board to review this case for fairness and equity and that you change the discharge as requested by the applicant.

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)		950629 - 960630	COG

Period of Service Under Review:

Date of Enlistment:  960701		Date of Discharge:  000902

Length of Service (years, months, days):

	Active:    04  02  02
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  38

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

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

Military Decorations:  None

Unit/Campaign/Service Awards:  None

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. 6210.6.

Chronological Listing of Significant Service Events:

980721:	Counseled for deficiencies in performance and conduct.  [Failure to comply with lawful orders and your willing disobedience with an NCO.  You have been warned repeatedly and failed to comply].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

981117:	Counseled for deficiencies in performance and conduct.  [Utilized a government phone at the visitors center to make 16 unauthorized long distance phone calls for a total of 1 hour and 43 minutes and a cost of $8.32].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. 

991006:	Special Court-Martial.
	Charge I: violation of the UCMJ, Article 134:
	Specification: Violate Base Order 5500.1F.
	Charge II: violation of the UCMJ, Article 92:
	Specification: Communicate a threat.
	Findings: to Charge I and II and specifications thereunder, guilty.
	Sentence: Confinement for 85 days, reduction to PFC.
	CA 991207:  Sentence approved and ordered executed.

000126:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

000208:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

000208:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  The factual basis for this recommendation was your conviction at a Special Court Martial on 6 October 1999, for violation of Article 134 and Article 92. 

000223:	Applicant submitted a conditional waiver requesting a general (under honorable conditions) discharge.

000313:	Commanding officer forwards conditional waiver recommending approval.

000329:	Conditional waiver denied.

000405:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to the commission of a serious offense, that the misconduct warranted separation, and by a vote of 2 to 1 recommended discharge under other than honorable conditions.

000524:	SJA review determined the case sufficient in law and fact.
000707:	Counseled for deficiencies in performance and conduct.  [Poor judgement and failure to comply with base housing regulations].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. 

000724:	Assistant Secretary of the Navy (Manpower & Reserve Affairs) approved discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.

000731:	GCMCA [Commanding General, Second FSSG] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 000902 under other than honorable conditions for misconduct due to the commission of a serious offense (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 and 2.  The Board considered the applicant’s overall record of service against standards of fairness and equity. The Board agrees that the applicant had good evaluations throughout his tenure, but his performance prior to the Special Court-Martial doesn’t mitigate the seriousness of the offense of which he was found guilty.  There is no record of the applicant’s performance after his release from confinement.  The discharge was proper and equitable.  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 relief, 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 92, failure to obey base regulations and Article 134, communicating a threat.

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