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

  ex-PVT, USMC
Docket No. MD03-00055

Applicant’s Request

The application for discharge review, received 20021007, 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 20030828.  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 – Pattern of misconduct (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  My problem in the military started because I had a 17-yr. old cousin who was more like a sister to me.  At the time of my UA’s she was seeing a 21 or 22 yr old man that her parents did not approve of, with good reason.  He had a bad temper and a criminal record.  After a while she realized this was not the type of person she needed to be involved with and broke off the relationship.  He would not accept this and threatened her.  She took some belongings of his to his house and left them when she knew he wasn’t home but before she could get very far down the street, he caught up with her and beat her.  After she told me on phone what had happened, I asked S/Sgt. G_ for leave to go home and take care of some personal business.  I made two requests and both time he denied them.  He told me I wasn’t going anywhere.  Being young and feeling desperate to get home, I left and came home anyway.  I had not been informed that if I was gone for 30 days I could be sent to the brig and given a bad discharge or I would have made extra effort to get things taken care of and get back to the base.  When I first saw my cousin, I was furious.  He had a black eye, one whole side of her face was bruised and both lips were burst open.  She told her parents she was going out of town for a while.  This was to give her bruises time to heal before she had to see them.  It took me a few weeks to find her ex-boyfriend and by then I was a lot calmer and I decided if I could just talk to him and make him see that she didn’t want to see him again.  Being naïve, I thought I could just talk to him and he would just disappear from all of our lives.  He lost his temper as soon as he saw me and I spoke to him and we ended up in a fight.  I must have gotten through to him though because he left and never bothered my cousin again.  I was gone about 31 days because that’s how long it took to find him and them make arrangements to get ack to the base.  I went back on my won and went to S/Sgt. G_ and he told me I was going to the brig.  This scared me to death and I took off and stayed with a friend in town for 5 days.  Anotherfreind who was on base tried to talk to S/Sgt G__ but he would not tell him anything.  I called S/Sgt G__ and he told me to come on back and he would take care of it.  I didn’t question how he was going to “take care of it”.  I just went back to the base and to his office where he had two chasers who were friends of mine already there.  I suppose this was another part of my humiliation because they had to escort me to the van and drive me to the brig.  I was court marital but had I known I would not get better representation for the Jag officer, I would have requested that my parents be allowed to hire a civilian attorney who would have at least tried to represent my case the way it should have been.  I do not feel my actions warranted an OTH discharge.  I did not commit any crimes.  I know I was wrong to leave the base without permission but at the time, I did what I felt I had to do for my cousin’s sake.  I know now, that I’m older, I should have handled this differently, but at the time, I did what I felt I had to do.  This doesn’t make it right but I’m proud of my country and I only wanted to serve it honorably.  I feel my only crime is I put my family before God and Country.  I request a fair and compassionate review and if there is any way you can upgrade my DD-214 to at least General, Under Honorable Conditions, I would be most grateful.  I had planned to make a career in the Marine Corps when I enlisted but at the time, I got my priorities out of order.

Documentation

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

Copy of DD Form 214
Criminal Record Check (2 pages)
Character Reference Letter from B_ C. M_
Character Reference Letter dated July 30, 2002
Character Reference Letter from Officer P_ W. B_, Statesville Police Department

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		930217 - 930324	COG

Period of Service Under Review:

Date of Enlistment:  930325		Date of Discharge:  940428

Length of Service (years, months, days):

	Active:    00  11  29
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  12			AFQT:  34

Highest Rank:  PVT

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.1 (1)			Conduct:  4.2 (1)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Expert Badge, NDSM

Days of Unauthorized Absence:  36

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Pattern of misconduct (administrative discharge board required but waived), authority:  MARCORSEPMAN Par. 6210.3.

Chronological Listing of Significant Service Events:

930916:	Counseled for deficiencies in performance and conduct.  [Lack of reasonable effort, failure to accept responsibility, lack of accountability, lack of attention to detail and overall poor performance.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

931022:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 86: Did on or about 930815, without authority, absent himself from his unit, to wit: AdminCo, School of Infantry, located at Marine Corps Base, CLNC, and did remain so absent until on or about 930915 (31 days/S).
	Findings:  to Charge I and specification 1 thereunder, guilty. 
	Sentence:  Confinement for 60 days, forfeiture of $500.00 pay per month for 2 months.
	CA 931022:  Sentence approved and ordered executed.

931108:	Counseled for deficiencies in performance and conduct.  [Lack of reasonable effort, failure to accept responsibility, lack of accountability, lack of attention to detail and overall poor performance.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940203:	NJP for violation of UCMJ, Article 86: UA from AdminCo, SOI, MCB, CamLej 0900, 940119 to 1745, 940125 (5 days/S)
Awarded forfeiture of $416.00 per month for 2 months, restriction and extra duties for 45 days.  Not appealed.

940318:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct due to having one NJP and one special court-martial.

940318:	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.

940325:	Commanding Officer, AdminCo, SOI, MCB, CamLej, NC recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct due to having one NJP and one special court-martial.

940328:	Commanding Officer, School of Infantry, MCB, CamLej, NC 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 one NJP and one special court-martial.

940422:	GCMCA [Commanding General] 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 19940428 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 one occasion, one special court-martial, adverse counseling, and other pending offenses that may have resulted in nonjudicial punishment or a court-martial.  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 youth and family problems were factors that contributed to his actions, 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 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 is evident 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 offenses 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 P1900.16D), effective 27 Jun 89 until 17 Aug 95.

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.

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