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

ex-PVT, USMC
Docket No. MD01-00638

Applicant’s Request

The application for discharge review, received 010406, 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 010928.  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: GENERAL UNDER HONORABLE CONDITIONS/Misconduct – Minor disciplinary infractions (with administrative discharge board), authority: MARCORSEPMAN Par. 6210.2.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  My discharge was inequitable because it was based on a severe personality clash between the NCOIC in my shop and myself, I graduated at the top of my class while at NAS Millington for training for my MOS 6364, was promoted meritoriously, and performed my job very well while at Camp Pendleton, I was promoted to LCpl and really like the Marine lifestyle, then my life took a drastic swing as I was stationed in new river, NC in Sept of 88.  I repeated to the Avionics/Fire control shop and settled in, from the beginning the MSgt and myself clashed, I tried to get along and avoid him.  Finally in March 89 I wrote a letter to the Commandant of the Marines and requested a transfer to another squadron as the CO at the squadron would not grant me one, I have enclosed a copy of the letter for your reference, as you can see a few months later in July of 89 I was busted in rank and then again in August 89 for failure to obey a lawful order, both of these charges were a surprise to me, as I was not aware I was written up until the day of my hearing, after being busted to a pvt, and being assigned to every "shit" detail, I began speaking to the squadron legal officer and had him file the paperwork and speak to the CO about an admin discharge, I figured if I could not get transferred, I hoped I would be discharged.  I rcd a general discharge in 11/89.  I sincerely believe I would have been granted a transfer to another duty station, I would have fulfilled my 4 year enlistment an maybe even had a military career, I saw a problem coming and tried everything in my power to prevent it.

2.  After my separation in Nov 89, I opened my own business in Dec 89, my business is still in operation and I have lead an excellent life, never been arrested or any brushes with the law, I feel my past service life is fitting of a honorable discharge.

3.  I am currently attending the police academy and have a 96% average, I graduate June 7th and plan to be a police officer, I feel my discharge should be upgraded as the general discharge leaves a stigma which would limit which police depts, would hire me, I feel in the long term this discharge would limit my promotions and career advancement in law enforcement.  I served proudly as a marine and don't believe it is fair that I should be penalized 12 years after I was discharged.

4.  Looking back, I could have done things different, I wish I would have changed my actions, I was young and should have thought long term, I respectfully request that the board upgrade my discharge to honorable discharge.

Documentation

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

Copy of DD Form 214
Copies from Service Record (5pgs)
Copy of Transfer Response Letter from Major General Wm M. K___
Copy of Acceptance Letter into the 67th Full Time Municipal Police Training class at the Allentown Police Academy.
Character Reference Letter
Copy of Statistical Analysis from G___ M. M___, Sr. Police Academy
Letters of Recommendations (3) 

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		861203 - 870719	COG

Period of Service Under Review:

Date of Enlistment:  870720		Date of Discharge:  891109

Length of Service (years, months, days):

	Active:  02  03  20
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  84

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0 (6)		Conduct:  4.0 (6)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Sharpshooter Badge 

Days of Unauthorized Absence:  27

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

GENERAL UNDER HONORABLE CONDITIONS/Misconduct-Minor disciplinary infractions (with administrative discharge board), authority:  MARCORSEPMAN Par. 6210.2.

Chronological Listing of Significant Service Events:

890206:	Counseled for deficiencies in performance and conduct.  [Your appropriate place of duty and the importance of attitude & performance of duty]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

890710:	Counseled for deficiencies in performance and conduct.  [Your inattention to details, not following written procedures and checklist which led to inadvertent firing of the release and control system]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

890711:	Counseled for deficiencies in performance and conduct.  [Your minor disciplinary infractions, disobeying lawful orders of superiors and appointed place of duty; specifically, for disobeying a lawful order to clean up an area of the hanger deck]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

890711:	NJP for violation of UCMJ, Article 92:  Failure to obey a lawful order or regulation, refused to obey a lawful order of SNCO on or about 1700, 890707, when instructed to clean an area in the hangar deck, stating, "I'm not cleaning up the bird shit" or word to that effect.
	Award:  Correctional Custody for 30 days, forfeiture of 1/2 pay per month for 2 months, reduction to E-2.  Not appealed.

890829:	NJP for violation of UCMJ, Article 86: UA 0730 890712 to 0620, 890808 [27days/S] from HML/A-167 MAG-26 MCAS, violation of UCMJ Article 92: Failure to obey lawful order; 1800, 890811.  PFC M__ failed to police outside squadron area to include the parking lot as ordered to do so by the Squadron Duty Officer.
	Award:  Forfeiture of $349.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  Not appealed.

890918:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.

890920:  	Applicant advised of his rights and having elected to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

890920:	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 two NJP's of 890711 and 890829.  Additionally noted are his three page 11 counseling entries of 890206, 890710, and 890711. 

891031:	SJA review determined the case sufficient in law and fact.

891031:	GCMCA [Commanding General] directed the applicant's discharge general under 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 891109 general under honorable conditions for misconduct due to minor disciplinary infractions (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).

Issues 1 and 4.   The applicant states his pattern of minor disciplinary infractions is based upon his failure to get along with a MSgt. in his chain of command.  The records provide no evidence that the applicant’s chain of command abused their authority or treated the applicant in a manner inconsistent with maintaining good order and discipline.  The Board found that the applicant was responsible for his actions.  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.  Relief is not warranted.

Issue 2.  The applicant provided little documentation about the business he operates, community service or certification of non-involvement with civil authorities.  The applicant’s discharge characterization accurately reflects his service to his country.  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.

Issue 3.  The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested in the issue.  The Board’s charter limits its review to a determination on the propriety and equity of the discharge.  In the applicant’s case the Board could discern no impropriety or inequity and therefore considered the applicant’s discharge was proper and equitable.  Relief denied.

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 92, failure to obey orders.

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