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

 ex-Pvt, USMC
Docket No. MD01-01145

Applicant’s Request

The application for discharge review, received 010828, 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 listed the Veterans of Foreign Wars as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020415.  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.  We ask you to review the case based on the evidence presented and that you change the discharge as requested.

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		860925 - 860928	COG

Period of Service Under Review:

Date of Enlistment:  860929		Date of Discharge:  900503

Length of Service (years, months, days):

	Active:    03  07  05
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  10			AFQT:  Unknown

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (9)			Conduct:  3.4 (9)

Military Decorations:  None

Unit/Campaign/Service Awards:  MUC, Letter of Appreciation

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:

870225:	Counseled for deficiencies in performance and conduct.  [Absence from appointed place of duty.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

870227:	NJP for violation of UCMJ, Article 86:
Specification: Absent from appointed place of duty on 0530-1715, 23Feb87.  Awarded forfeiture of $172.00 per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

870612:	Counseled for deficiencies in performance and conduct.  [Frequent involvement with military authority.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

871023:	NJP for violation of UCMJ, Article 91 (2 specs):
Specification 1: Having received a lawful order from GySgt to pick up his cigarette butt on 0830, 1OOct87, willfully disobey the same.
Specification 2: Disrespectful in deportment towards GySgt by walking away from him on 0830, 1Oct87.
Awarded forfeiture of $100.00 per month for 1 month, restriction for 15 days.  Forfeiture and restriction is hereby suspended for 3 months.  Not appealed.

881010:	Counseled for deficiencies in performance and conduct.  [Complete lack of responsibility toward military commitments.  Specifically, failure to properly prepare and pass the Battalion commanders JOB/Wallocker and personnel inspection.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

890607:	NJP for violation of UCMJ, Article 86:
Specification 1: Absent from appointed place of duty on 0716 - 1300, 19May89.
Specification 2: Absent from appointed place of duty on 0801 - 1430, 29May89.
Violation of UCMJ, Article 134:
Specification: Wrongfully have sexual intercourse with a woman not his wife on 0900, 7May89.
Awarded forfeiture of $391.00 per month for 2 months, extra duties for 45 days, reduction to PFC.  Forfeiture suspended for 6 months.  Not appealed.

891107:	NJP for violation of UCMJ, Article 86:
Specification: Fail to go at the time prescribed to a Winter Service "A" uniform inspection at 0730, 30Oct89.
Violation of UCMJ, Article 107:
Specification: Make a false official statement to GySgt on 0900, 30Oct89, to wit: my summer service "A" uniform is in the cleaners for alterations.
Awarded forfeiture of $182.00 per month for 1 month, restriction and extra duties for 14 days.  Forfeiture suspended for 6 months.  Not appealed.

891109:	Vacate forfeiture awarded at CO's NJP dated 7Nov89.

891121:	Counseled for deficiencies in performance and conduct.  [Desire to remain on active duty,  Your frequent involvement under the UCMJ are considered prejudicial to good order and discipline within our ranks.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

900109:	NJP for violation of UCMJ, Article 107:
Specification: Sign an official document on 1200, 4Jan90 with intent to deceive, to wit: sick call slip, which was false in that it authorized him 24 hours bed rest.
Violation of UCMJ, Article 121:
Specification: Make in its entirety the signature of doctor to require 24 hours bed rest on 1200, 4Jan90.
Awarded forfeiture of $182.00 per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

900110:	Counseled that you are being recommended for a administrative discharge as a result of disciplinary infractions.

900123:	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 pattern of misconduct as documented in SRB. 

900124:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

900124:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

900416:	Applicant voluntarily waived administrative discharge board.

900419:	SJA review determined the case sufficient in law and fact.

900423:	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 900503 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.  A characterization of service of under other than honorable conditions is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The applicant’s service was marred by award of nonjudicial punishment (NJP) for offenses triable by court-martial on five occasions and adverse counseling entries on other occasions.  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 would be inappropriate.  Relief denied.

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; Article 91, failure to obey a lawful order from a SNCO; Article 107, false statements; Article 134, wrongful intercourse.

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