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

ex-Pvt, USMC
Docket No. MD01-00667

Applicant’s Request

The application for discharge review, received 010410, 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 the 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: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct-Pattern of misconduct (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  I am writing this statement in regard to a upgrade of my discharge status.  I have long been in need of health coverage due to my service connected disability.  I was treated for injuries to my arches and ligaments in both knees, while I was in custody at Camp Pendleton.  After my release from custody, I was returned to 29 Palms only to be presented with documents that would end my service career.  I was misled and misinformed. Frustrated, and disillusioned, I waived legal counsel.  Its been hard times ever since.  An upgrade will allow me to qualify for medical coverage and possible job training, so I can move on with my life, and properly take care of my family.  I look forward to the boards approval of my request.  Thank you.

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)		900329 - 900415	COG

Period of Service Under Review:

Date of Enlistment:  900416		Date of Discharge:  910204

Length of Service (years, months, days):

	Active:    00  09  19
	Inactive:  None

Age at Entry:  28			Years Contracted:  4

Education Level:  11			AFQT:  63

Highest Rank:  Pvt

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.1 (2)			Conduct:  3.9 (2)

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-Pattern of misconduct (administrative discharge board required but waived), authority:  MARCORSEPMAN Par. 6210.3.

Chronological Listing of Significant Service Events:

901001:	NJP for violation of UCMJ, Article 86:
Specification 1: Absent from appointed place of duty on 0800, 16Sep90.
Specification 2: Absent from appointed place of duty on 0500, 20Sep90.
Violation of UCMJ, Article 112: Drunk on duty on 0100, 15Sep90.
Awarded forfeiture of $300.00 per month for 2 months, restriction for 45 days.  Not appealed.

901002:	Counseled for deficiencies in performance and conduct.  [The miss use of alcohol and an alcohol related incident which resulted in BN NJP dated 901001].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

901012:	Vacate suspended forfeiture of $300.00 per month for 2 months.

901126:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 86 (4 specs)
	Specification 1: Fail to go to appointed place of duty on 11Oct90.
	Specification 2: Fail to go to appointed place of duty on 13Oct90.
	Specification 3: Fail to go to appointed place of duty on 30Oct90.
	Specification 4: Fail to go to appointed place of duty on 1Nov90.
	Charge II: violation of the UCMJ, Article 128:
	Specification: Unlawfully strike another Marine on 21Oct90.
	Charge III: violation of the UCMJ, Article 134:
	Specification: Break restriction on 12Oct90.
	Finding:  to Charge I, II and III and the specifications thereunder, guilty.
	Sentence: Forfeiture of $493.00, confinement for 30 days.
	CA action 901203: Sentence approved and ordered executed.
	
910103:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

910107:  	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.

910109:	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 your failure to conform to the standards of the Marine Corps.  On 1 October 1990, you received nonjudicial punishment for violation of Articles 86 and 112, Uniform Code of Military Justice, being absent from your appointed place of duty and being drunk on duty.  On 26 November 1990, you were convicted by summary court-martial for violation of Articles 86, 128 and 134, Uniform Code of Military Justice, four specifications of failing to go to your appointed place of duty, assault and breaking restriction.  Due to your continued misconduct, I have determined that you possess no potential for further naval service and accordingly, your retention is not warranted. 

910111:	SJA review determined the case sufficient in law and fact.

910113:	GCMCA [Commanding General] 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 910204 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 states he was misled and misinformed concerning his administrative discharge.  However, the applicant was advised of his rights, decided not to consult with counsel, and elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.  His frustration at the time does not negate his responsibility for these decisions.

The Veterans Administration determines eligibility for post-service benefits, not the NDRB.  There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans’ benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  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.

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, unauthorized absence from place of duty; Article 128, unlawfully striking another Marine; Article 134, breaking restriction.

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