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

ex-Pvt, USMC
Docket No. MD02-00424

Applicant’s Request

The application for discharge review, received 020221, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a documentary record discharge review.  The Applicant listed the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 021029.  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, as submitted

1.  The discharge under other than honorable conditions was too harsh a penalty.  I request an upgrade to Honorable Discharge because:

The pattern of alleged mis-conduct - Misuse of Personal Credit Cards by not being able to pay my bills was a personal issue.  I was in debt by $5,000 and was having trouble making the monthly minimum payment; and

I was stopped my MP's for driving a vehicle under the influence of alcohol.  I had drank some beer.  I was within the legal limit, but on base you are not supposed to drive a vehicle after having consumed any alcohol.

Both above incidents occured within 2 years from each other.  I had no other incidents within the 4 years, 6 months, 17 days of active duty service

2.  (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.

Documentation

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

Copy of Applicant's DD Form 214
Statement from Applicant, undated
Police record check from Mora Country Sheriff's Department, undated
Character reference dated January 9, 2002
Character reference from probate judge, undated
Character reference from Pastor dated January 4, 2002

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		950817 - 960630	COG

Period of Service Under Review:

Date of Enlistment:  960701		Date of Discharge:  010117

Length of Service (years, months, days):

	Active:    04  06  17
	Inactive:  None

Age at Entry:  17			Years Contracted:  5

Education Level:  12			AFQT:  68

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (13)			Conduct:  4.0 (13)

Military Decorations:  None

Unit/Campaign/Service Awards:  Letter of Appreciation, OSR, AFEM, 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:

970320:	NJP for violation of UCMJ, Article 92:
Specification: Wrongfully disobey a lawful written order on 2122, 8Mar97, to wit: GruO 1700.3E by consuming alcoholic beverages under the legal age of 21.
Awarded forfeiture of $250.00 per month for 2 months, reduction to Pvt.  Not appealed.

971217:	Counseled for deficiencies in performance and conduct.  [Financial irresponsibility by failing to maintain sufficient funds in checking account which resulted in uttering worthless checks that totaled $70.00.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990729:	NJP for violation of UCMJ, Article 123A:
Specification: Wrongfully and unlawfully utter checks to Samarai Club, MCX, and T Club in the amount of $490.72 between 8Apr99 and 5May99.
Awarded forfeiture of $100.00 per month for 2 months, restriction and extra duties for 30 days, reduction to PFC.  Not appealed.

000120:	NJP for violation of UCMJ, Article 92:
Specification: Failed to obey MCO 4600.40 by using an issued government credit card for unofficial business and withdrawing funds of unnecessary items in the amount of $210.24 on 27Aug99, 30Aug99, 6 and 7 Sep99.
Violation of UCMJ, Article 107:
Specification: Make a false statement to SgtMaj regarding an issued government credit card on 23Nov99.
Violation of UCMJ, Article 111:
Specification: Driving under the influence on 19Jan00.
Awarded forfeiture of $563.00 per month for 2 months, restriction and extra duties for 30 days, reduction to PFC.  Not appealed.

000927:	NJP for violation of UCMJ, Article 134:
Specification: Failure to pay just debts to Bank of America in the amount of $250.24.
Violation of UCMJ, Article 123:
Specification: Failure to maintain sufficient funds in order to pay just debts.
Awarded forfeiture of $502.00 per month for 2 months, restriction and extra duties for 45 days, reduction to Pvt.  Forfeiture suspended for 6 months.  Not appealed.

001102:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

001102:	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.

001201:	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 constant pattern of misconduct as reflected in the service record. 

001219:	SJA review determined the case sufficient in law and fact.

001221:	GCMCA [Commanding General, 3d Marine Aircraft Wing] 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 010117 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 from that expected of a Marine.  The Applicant’s service was marred by award of nonjudicial punishment (NJP) on four occasions and an adverse counseling entry on another occasion.  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 the naval service, and falls short of that required for an honorable characterization of service.  The Board found nothing in the Applicant’s service record to mitigate his misconduct sufficient to warrant an upgrade to his discharge.  Relief denied.

Issue 2.  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.  The Board determined that the Applicant’s evidence of post-service conduct did not mitigate the conduct for which he was discharged.  Relief not warranted.

The Applicant 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.  Representation at a personal appearance hearing is recommended but not required.

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; Article 107, false official statement; Article 123, insufficient funds; Article 134, failure to pay debts.

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