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

 ex-PVT, USMC
Docket No. MD01-01208

Applicant’s Request

The application for discharge review, received 010924, 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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020417.  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. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

Prior to the documentary discharge review, the applicant introduced no issues as block 8 on the DD Form 293 is blank. 

Documentation

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

Character Reference Letters (3)

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		960109 - 960309	COG

Period of Service Under Review:

Date of Enlistment:  960310		Date of Discharge:  990225

Length of Service (years, months, days):

	Active:    02  11  23
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  57

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency: NMF		Conduct: NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Marksmanship Badge, SSDR, LOA

Days of Unauthorized Absence:  28

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.3.

Chronological Listing of Significant Service Events:

960919:	Counseled for deficiencies in performance and conduct.  [Academic drop from the (AS) course of instruction, drop code (FAG)]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

961205:	NJP for violation of UCMJ, Article 86: Absent without leave on or about 0545, 961028 until 1300, 961122 (25days).
	Award:  Forfeiture of $404.00 pay per month for 1 month, restriction and extra duty for 30 days.  No indication of appeal in the record.

970115:	Counseled for deficiencies in performance and conduct.  [Deficiencies in your judgement and integrity, you used your roommates phone to make long distance phone calls without permission, furthermore, you denied using the phone when questioned by your roommate.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

980701:	Counseled for deficiencies in performance and conduct.  [During a two and a half week period you have received 3 letters concerning at least 6 bad checks.  You have bee counseled on several occasions about this matter.  You state that your wife wrote the checks and that you also cancelled the checking account.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

980716:	Counseled for deficiencies in performance and conduct.  [Mismanagement of your checking account resulting in the return of ten checks from MWR due to insufficient funds.  The financial irresponsibility of your personal affairs has caused an undue burden upon CSSD-27 and you will be returned to 8TH MT BN].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

980910:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 86: UA from A Co, 8th MTBn, 2d FSSG from 0700, 980721, to 0430, 980724(3days).  Charge II: violation of the UCMJ, Article 92: (2 Specifications), Spec 1: Disobeying a lawful order given to him by SSgt B____ to check into A Co, Spec 2: Failed to obey a lawful order given to him by SSgt B____ n 980814 to report to Sgt F_____ immediately after LCpl release from jail that day.
	Finding:  to Charge I and the specification thereunder, not guilty. To Charge II and specification 1 thereunder, guilty.  Specification 2 under Charge II not guilty.  
	Sentence:  Confinement for 30 days, forfeiture of $617.00 pay per month for 1 month, reduced to E-1.
	CA action 980910:  Sentence approved and except for the other than honorable discharge, will be executed.

981007:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

981007:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

981007:	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 the respondent's 4 page 11 entry dated 960919, 970713, 980701, 980716 and NJP dated 961205, 1 Summary Court-Martial dated 980910.  

981210:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to a pattern of misconduct, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

990217:	SJA review determined the case sufficient in law and fact.

990222:	GCMCA [Commanding General, 2d Force Service Support Group] 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 990225 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).

The applicant introduced no decisional issues for consideration by the Board.

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 P1900.16E), effective 31 Jan 97 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 86, unauthorized absence; Article 92, failure to obey a lawful general order.

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