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

 ex-Pvt, USMC
Docket No. MD02-00099

Applicant’s Request

The application for discharge review, received 011016, 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 020620.  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

1.  My discharge was based on two issues and called a pattern of misconduct.  I was on restriction and broke restriction not by leaving base but by having my wife over in my room.  I was then sent to the brig and later released.  I was not told what the purposes of the board or its importance. If I had of known I would not have wanted to be discharged.  Therefore I ask to upgrade my discharge and RE-code to reenlist.  I feel this injustice can be corrected by giving (applicant) a chance to prove that I have grown and mature.  I feel that I am still a Marine.  And once a Marine all ways a Marine which has been taken care of.  All I want is the chance to prove my self and earn back the title Marine.

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)		930716 - 940705	COG

Period of Service Under Review:

Date of Enlistment:  940706		Date of Discharge:  970822

Length of Service (years, months, days):

	Active:    03  01  17
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  31

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (8)			Conduct:  4.2 (8)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, Letter of Appreciation, SSDR

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. 6210.3.

Chronological Listing of Significant Service Events:

950911:	Counseled for deficiencies in performance and conduct.  [Display of a lack of military character.  Specifically on 20 July 95 at or about 1300, departed my work section for personal business without proper authorization.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970114:	NJP for violation of UCMJ, Article 92 (2 specs):
Specification 1: Failed to obey area order P11110, having females in the barracks over night on 22Dec96.
Specification 2: Failed to obey BO P5000.2H, driving with suspended license on 22Dec96.
Violation of UCMJ, Article 107:
Specification: False statement to CWO2 and SSgt on 22Dec96.
Awarded forfeiture of $505.00 per month for 2 months, restriction and extra duties for 45 days, reduction to PFC.  Not appealed.

970415:	NJP for violation of UCMJ, Article 92:
Specification: Failure to obey B.O. P5000.2H driving with suspended/revoked drivers license.
Awarded forfeiture of $450.00 per month for 2 months, restriction for 45 days, reduction to Pvt.  Forfeiture suspended for 6 months.  Not appealed.

970520:	Counseled for deficiencies in performance and conduct.  [Violation of Article 92 in that while on restriction imposed by the Battalion Commander, applicant was found together with a female in his barracks room in his rack.  This not only shows disrespect towards your Commanding Officer, but the Armed Forces.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970528:	Counseled for deficiencies in performance and conduct.  [Loss of my military I.D. card.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970611:	NJP for violation of UCMJ, Article 92:
Specification: Fail to obey BnO 1601.21 having a female in his room after hours, on 15May97.
Awarded forfeiture of $450.00 per month for 2 months, restriction and extra duties for 30 days.  Forfeiture suspended for 6 months.  Not appealed.

970822:	Counseled for deficiencies in performance and conduct.  [Loss of military ID card.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970424:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

970507:	Applicant advised of his rights and having consulted 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.

970623:	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 two nonjudicial punishments and your one 6105 counseling entry. 

970715:	SJA review determined the case sufficient in law and fact.

970728:	GCMCA [Commanding General, 1st 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 970822 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 the member's conduct constitutes a significant departure of that expected of a Marine.  The applicant’s service was marred by award of nonjudicial punishment (NJP) for offenses triable by court-martial on three 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 failed to demonstrate that he received an injustice concerning his separation proceedings. On 970507, the applicant was advised of his rights and having consulted 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.  The Board found that the applicant’s age, education level, and test scores qualified him for enlistment.  While he may feel that ignorance was a factor that contributed to his decisions, the record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

The NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces. Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment. A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  Relief is therefore denied.

The applicant’s discharge characterization accurately reflects his service to his country.   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 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