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

 ex-Pvt, USMC
Docket No. MD02-01085

Applicant’s Request

The application for discharge review, received 20020725, 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 20030812.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  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 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:

Applicant’s DD Form 214
Appointment of veterans service organization as claimant’s representative, VA Form 21-22, dated June 13, 2002

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		960318 - 960429	COG

Period of Service Under Review:

Date of Enlistment:  960430		Date of Discharge:  990316

Length of Service (years, months, days):

	Active:    02  10  17
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  66

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.5 (6)			Conduct:  4.4 (6)

Military Decorations:  None

Unit/Campaign/Service Awards:  MUC, SSDR with 1 Star

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:

980304:	NJP for violation of UCMJ, Article 86:
Specification: Failure to report to morning PT at 0530, 980211 as directed.
Violation of UCMJ, Article 92:
Specification: Wrongfully smoking in Barracks 229, Room 233 on 980130.
Violation of UCMJ, Article 112:
Specification: Wrongfully appropriated military property of a value greater than $100.00 on 980130.
Awarded forfeiture of $150.00 per month for 2 months, restriction for 60 days, reduction to PFC.  Appealed 980311.  Appeal denied 980317.

980304:	Counseled for deficiencies in performance and conduct.  [Absence without leave, failure to obey order or regulations, and larceny and wrongful appropriation.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980701:	Counseled for deficiencies in performance and conduct.  [On 980615 failed to be at the CO’s squadron run at 0515 as directed by GySgt and SSgt.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980709:	Vacate reduction awarded at CO’s NJP dated 980304.

980712:	Counseled for deficiencies in performance and conduct.  [Lack of corrective action towards recent page 11 entries dated 980304 and 980701.  This ultimately led to the vacation of the NJP punishment on 980708.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980720:	NJP for violation of UCMJ, Article 86:
Specification: Failure to be at appointed place of duty on 0701, 980707, to wit: CMD formation.
Awarded forfeiture of $450.00 per month for 2 months, restriction for 60 days, reduction to Pvt.  Forfeiture and reduction suspended for 6 months.  Appealed 980727.  Appeal denied 980811.

980723:	Counseled for deficiencies in performance and conduct.  [Unauthorized absence.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

981005:	Vacate forfeiture and reduction awarded at CO’s NJP dated 980720 and suspended on 980727.

981020:	NJP for violation of UCMJ, Article 86:
Specification: Failure to go at the time prescribed to appointed place of duty, to wit: failed to check in for restriction on 980910.
Violation of UCMJ, Article 92:
Specification: Failure to obey order or regulation on 980914, to wit: broke restriction and was found at the USO by the Sqdn GySgt.
Awarded forfeiture of $463.00 per month for 2 months, restriction for 60 days.  Forfeiture for 1 month suspended for 6 months.  Not appealed.

981021:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

981022:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

981113:	Counseled for deficiencies in performance and conduct.  [Recent NJP of 981020 which has lead to pending administrative separation due to a pattern of misconduct.  Based on continuous infractions of the UCMJ, Applicant established a pattern of misconduct which was prejudicial to good order and discipline.  Counseled that he has failed to take corrective action on previous identified deficiencies and failed to seek assistance.]  Failure to take necessary corrective action has resulted in processing for administrative separation.

981113:	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 stems from Applicant’s consistent lack of maturity, leadership, and repeated violations of the UCMJ.  

990128:	Applicant waived administrative discharge board.

990203:	SJA review determined the case sufficient in law and fact.

990209:	GCMCA [Commanding General, 1st Marine Aircraft Wing] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

990311:	Counseled for deficiencies in performance and conduct.  [Missed dental appointment scheduled for 22 February 1999.  Lack of attention to detail impacts the command overall dental readiness, and will not be tolerated.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19990316 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 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 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.  An upgrade would be inappropriate.  Relief denied.  

The Applicant’s discharge characterization accurately reflects his service to his country.  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 92, disobey a lawful 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