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

 ex-Pvt, USMC
Docket No. MD02-00569

Applicant’s Request

The application for discharge review, received 020311, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions.  The Applicant requested a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.  Subsequent to the application the Applicant obtained representation by the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030131.  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.  (Equity Issue) This former member opines that his personal and marital problems sufficiently extenuated his misconduct of record to warrant upgrade of his character of service to Honorable.

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:

Letter from the Applicant, undated
Letter from Applicant's wife, undated
Character reference dated October 2, 2001
Character reference from Applicant's brother, dated October 28, 2001
Character reference from Applicant's mother, dated September 30, 2001
Character reference from MSgt, undated
Letter from Commander, Marine Corps Air Bases Western Area, San Diego, CA dated May 22, 2001
Applicant's DD Form 214
Thirty-nine pages from Applicant's service record

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		980227 - 980322	COG

Period of Service Under Review:

Date of Enlistment:  980323		Date of Discharge:  010525

Length of Service (years, months, days):

	Active:    03  02  03
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  41

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0 (4)			Conduct:  4.0 (4)

Military Decorations:  None

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

Days of Unauthorized Absence:  3

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:

000517:	Applicant informed eligible but not recommended for promotion to Cpl for the June promotion period because of lack of leadership, maturity, and poor attitude.

000621:	Applicant informed eligible but not recommended for promotion to Cpl for the July promotion period because of lack of discipline, maturity, and responsibility.

000830:	NJP for violation of UCMJ, Article 86 (2 specs):
Specification 1: Failure to go at the time prescribed to appointed place of duty on 0700, 7Aug00.
Specification 2: Failure to go at the time prescribed to appointed place of duty on 0700, 8Aug00.
Violation of UCMJ, Article 91:
Specification: Disrespectful in language towards a non-commissioned officer on 16Aug00.
Violation of UCMJ, Article 92 (2 specs):
Specification 1: Failure to obey a lawful general order on 8Aug00, to wit: Military Restraining Order dated 000310, by wrongfully continuing to associate with one L_ C. T_.
Specification 2: Failure to obey a lawful order on 26Aug00, to wit: walking over to Ms. T_'s care and allowing her to kiss him.
Awarded forfeiture of $150.00 per month for 2 months, restriction and extra duties for 45 days, reduction to PFC.  Forfeiture suspended for 6 months.  Not appealed.

000831:	Applicant informed eligible but not recommended for promotion to Cpl for the September promotion period because of lack of leadership traits.

000925:	Counseled for deficiencies in performance and conduct.  [Malingering, lack of integrity, poor attitude and sub-standard performance.  On 000809 the Section Head assigned a (2) day task, painting of the section work area.  Seventeen working days later Applicant had not completed the task and had no legitimate reason as to why he had not completed the task.  On 000828 his section had a wall locker/junk on the bunk inspection, certain items of the 782 gear he displayed on his rack were not his, to include: canteens, canteen covers, first aid kit, field protective mask and cartridge belt.  He borrowed this 782 gear from a Marine within the Detachment.  It has been determined that he had this 782 gear missing for the last three months.  This act was very deceptive and exhibits a total disregard for integrity. He was also missing required uniform items, (3) sets of serviceable utilities.  His overall bearing and demeanor is unsatisfactory and often borders insubordination.  He cannot be trusted to work within his MOS and perform his regular duties due to a lack of focus, discipline and due to safety concerns for himself and others.  His substandard performance borders dereliction of duty and has negatively impacted the morale in the section.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

001104:	Counseled for deficiencies in performance and conduct.  [Specifically on 001010 his unit had a Detachment wall locker inspection and equipment serviceability inventory.  His display indicated he was totally unprepared.  He was missing 10 items (1 gas mask, 2 magazine pouches, 1 LVB, 1 cartridge belt, 2 canteens, 2 canteen covers, and 1 pair of boots).  On 000814 after the section's inspection by GySgt C_, he was told to submit a missing gear statement for the items missing, however, he said he was going to purchase the items he was missing.  He has done neither.  Accountability for one's equipment is paramount.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

001219:	NJP for violation of UCMJ, Article 90:
Specification: Willfully disobey a lawful order from Captain on 27Sep00, to wit: to remain 1,000 feet from Ms. L_ C. T_.
Violation of UCMJ, Article 134:
Specification: Break restriction on 27Sep00.
Awarded forfeiture of $200.00 per month for 2 months, restriction and extra duties for 45 days, reduction to Pvt.  Restriction suspended for 6 months.  Not appealed.

010510:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

010510:	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.

010510:	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 Applicant's page 11 counseling entries on 000517, 000621, 000925, and 001010 and page 12 NJP entries on 000912 and 001219.  

010514:	SJA review determined the case sufficient in law and fact.

010521:	GCMCA [Commanding General, 3d Marine Aircraft Wing, San Diego, CA] 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 010525 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.
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.

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 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.  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, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that should have been provided to receive consideration for relief, based on post-service conduct.  The Applicant’s evidence of post-service conduct was found not to mitigate the offense 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 86, unauthorized absence; Article 90, disobeying a lawful order of a commissioned officer; Article 91, disobeying a lawful order of a non-commissioned officer; 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 “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