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

 ex-PVT, USMC
Docket No. MD02-00512

Applicant’s Request

The application for discharge review, received 020308, 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 021115.  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.  In the violations of Art 123A UCMJ on October 19, 1994. I was stationed with HMM-262 Camp Futoma, Okinawa, Japan, when my wife decided to divorce me.  At the time there was no way to communicate with her and I wrote checks totaling $575.00, which I was punished for with a reduction in rank and a loss of $100.00. 1 was also required to pay off these outstanding checks. E_ (my ex-wife) then proceeded to write insufficient checks to Blockbuster Video for $88.17 while I was still in Japan.  Due to the lapse of time to Blockbuster, as well as change of address, I was not aware of the situation until it was too late.  I suffered the, consequences of the mistake with a reduction of rank for the second time as well as paying $427.00 forfeiture of pay and to pay off her checks to Blockbuster. During this experience, my ex-wife ruined my credit by charging-up accounts, selling off all of our belongings and having my car repossessed.  To settle this matter as quickly as possible, my parents filed my divorce for me by Power of Attorney.  The final papers and decree were officially filed on December 29, 1994. Unfortunately, my ex-wife turned to drugs and a fast life style that resulted to my returning from Japan to my base housing apartment (311 C Encheon, Camp Pendleton) a totally trashed apartment as witnessed by me and SSGT W_, who was a mentor for me. Because of this, I lost the privilege of working on helicopters, when the divorce proceedings were announced and became more of a mark to most of my peers. I do, in fact, take responsibility for my actions but with forfeitures of pay, spousal support and her blind use of my finances, what was I to do. I received the Good Conduct Medal on May 5, 1995 and an average enlistment pro con scores of 4.3 and 4.2. I received the expert marksman badge 2 years in a row and was a model Marine until this situation.  This was 8 years ago and now I have been a model citizen.  I am currently attending Westwood College of Aviation to achieve my dream of becoming an aircraft mechanic and I have 44 credit hours of college.  I have also maintained a good work history. I feel that this discharge was unjust and has hindered my life for the past 8 years.  As I look back on my discharge, I was not given my notification of separation proceedings until February 7, 2002, with the request of my records.  IE: the right to consult with counsel prior to electing or waving any of my rights. Enclosed I have included a copy of my divorce decree, a copy of my college transcript from Sul Ross State University, a letter from Westwood College of Aviation in good standing, as well as a registration statement, a statement from C_ A. B_, my mother, who filed the divorce, and military records that were sent to me by the National Personnel Records Center. As further evidence, I had an accident during my stay and had back pain off and on for several months.  I was given 800 mgs. of Tylenol for relief and put on light duty.  In the beginning, the doctors would tell me to run for exercise which put more stress on my back muscles and prolonged the pain.  This also had an affect on my attitude and weight which has been mentioned as reasons for the discharge I now have.

In closing, I have had no violent altercations, as well as no criminal history that should constitute an other than honorable discharge and I respectfully request an upgrade to a General Discharge. I fully anticipate you response to this matter.  Respectfully,

Documentation

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

Statement from C_ A. B_ (2 pgs)
Copy of Divorce Decree (5 pgs)
Copy of Transcript 
School Registrar Statement
Verification of School
Copy of Record of Service (Pro and Con Scores)
Copy of Offenses and Punishments
Copy of DD Form 214
Letter from Applicant (2 pgs)

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		911210 - 920920	COG

Period of Service Under Review:

Date of Enlistment:  920921		Date of Discharge:  951020

Length of Service (years, months, days):

	Active:    03  00  30
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  49

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0 (10)			Conduct:  4.0 (10)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Expert Badge (2nd), NDSM, SSDR, GCM

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:

940928:	Counseled for deficiencies in performance and conduct.  [Failure to submit for a dependent allotment to support wife and children while deployed to Okinawa.  Shortly after arriving to Okinawa Applicant received numerous no pay dues, and consequently was directed to the Navy Relief Society to assist in settling his financial short coming.  He was unofficially counseled about financial responsibilities to his family and once again advised to submit for a dependent allotment and once again he declined.  The third week of June 1994, he was advised of divorce proceedings.  He was then sent to legal to gather information on financial responsibilities which led to an agreement for dependent support.  Numerous messages from SgtMaj L_ from MAG-39, stated he was not supporting his spouse and children.  The only attempt made was a support check to his wife which was returned for insufficient funds.  He currently has a history of failing to take responsibility for legal and moral duties.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940930:	Counseled for deficiencies in performance and conduct.  [Disregard to previous counseling sessions and lawful orders from a SNCO.  Failed to satisfactorily carry out directions, orders, and resolve personal problems.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

941019:	NJP for violation of UCMJ, Article 123a: On 940902, wrote four (4) checks totalling $575.00 to MWR Facilities, knowing that he did not have sufficient funds to cover the checks.
Awarded forfeiture of $100.00 pay per month for 1 month, restriction and extra duties for 25 days, reduction to E-2.  Not appealed.

941020:	Counseled for deficiencies in performance and conduct.  [Failure to go to the appointed place of duty, remedial PT, on 941017.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950505:	NJP for violation of UCMJ, Article 134: Did at blockbuster Video, Oceanside, CA on or about 950204 utter two bad checks totalling $88.17 by failing to maintain sufficient funds in his checking account to cover payment of said checks.
	Awarded forfeiture of $427.00 pay per month for 1 month (suspended for 6 months), 30 days restriction to the limits of HMLA-367, MAG 39, CamPen, 45 days extra duty, reduction to E-1.  Not appealed.

950814:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions and misconduct due to a pattern of misconduct.

950814:	Applicant advised of 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.

950814:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions and misconduct due to a pattern of misconduct.  The factual basis for this recommendation was three page 11 official counseling entries and two Non-Judicial Punishments (NJPs) during this contract for writing and cashing insufficient funds.

950925:	SJA review determined the case sufficient in law and fact.

951017:	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 951020 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 two 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 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.  While he may feel that his marital, medical, and financial problems were factors that contributed to his actions, the record clearly reflects his disregard for the requirements of military discipline and demonstrated that he was unfit for further service.  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.  Contrary to the Applicant’s allegations, the Board found that the Applicant was properly notified of his rights pending administration separation on 950814.  On that date the Applicant waived all rights except his right to obtain documents used to support the basis for the separation.  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 inequity must have existed during the period of enlistment in question.  No such error or inequity 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.  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 18 Aug 95 until 30 Jan 97. 

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 123a, insufficient funds; Article 134, worthless checks.

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 “afls14.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