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

  ex-Pvt, USMC
Docket No. MD03-00426

Applicant’s Request

The application for discharge review was received on 20030114.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant listed the American Legion as his representative on the DD Form 293.
In the acknowledgement letter the applicant was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington, D. C. area.  Applicant did not respond.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20031121.  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 – Minor disciplinary infractions (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.2.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1.  I have been a good citizen since being discharged.

2.  My record of NJP’s/Article 15’s indicates only isolated or minor offenses.

3.  The punishment I received was too severe compared with today’s standards.

4.  My Discharge was based on many offenses, but they were mostly only minor offenses.”

Additional issues submitted by Applicant’s counsel/representative (AMERICAN LEGION):

“5.  This former member 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 DD Form 214
Letter from Applicant’s brother
Letter from Applicant’s wife
Letter of recommendation from Minister F_ M_
Letter of recommendation from Bishop O_ M_
Credit report (2 pp.)

PART II - SUMMARY OF SERVICE

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

	Active:   USAF		850329 – 850417	Not available
	Inactive: USMCR(J)		870423 - 870428	COG

Period of Service Under Review:

Date of Enlistment:  870429		Date of Discharge:  891222

Length of Service (years, months, days):

	Active:  02  07  24
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  50

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (5)		Conduct:  4.1 (5)

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR 

Days of Unauthorized Absence:  None 

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Minor disciplinary infractions (administrative discharge board required but waived), authority:  MARCORSEPMAN Par. 6210.2.

Chronological Listing of Significant Service Events:

871120:	NJP for violation of UCMJ, Article 92: Violated ScolO 1050.3S by breaking curfew on 871021.
Awarded forfeiture of $200.00 per month for 2 months, and 30 days CC.  Forfeiture of $200.00 for one month suspended for 3 months  Not appealed.

871204:	Counseled for deficiencies in performance and conduct.  [Breaking curfew on or about 2230, 871021.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

880225:	NJP for violation of UCMJ, Article 128:  On or about 2230, 880225 assault PFC S_.
Awarded forfeiture of $150.00, restriction and 
extra duties for 14 days.  Not appealed.

881027:	NJP for violation of UCMJ, Article 91:  Willfully disobeyed order of Sgt M_ to report to the DNCO at 0150, 881016.  Violation of UCMJ, Article 91: At 0150, 881016, was disrespectful to Sgt M_ by saying to him, “I am a man too, rank don’t mean shit to me” or words to that effect.
	Awarded forfeiture of $150 per month for 1 month, restriction and extra duty for 14 days (suspended for 3 months).  Not appealed.

881027: 	Counseled for deficiencies in performance and conduct.  [3 NJPs on the current contract, this frequent involvement with authorities shows a lack of respect for the rules and articles governing armed forces personnel.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

881206:	Assigned to Battalion Weight Control Program.  Initial weight of 188 lbs with 17.1% body fat.  Max weight is 169.  Instructed to lose 3.1 lbs per month for 6 months.

890314:	Applicant received Notification of Deficiencies.  Advised that any further deficiencies may result in disciplinary action and administrative separation.

890921:	Driving privileges revoked until 2400, 3 November 1995 aboard all military installations for driving on a revoked license, reckless driving, failure to report an accident, leaving the scene of an accident and doing 65 in a 55 mph zone.  Further counseled on the use of poor judgment and failure to comply with rules and regulations which contribute to the good order and discipline of the Marine Corps.

890928:	Traffic citation for driving on base revocation referred to command for disciplinary action.

891024:	NJP for violation of UCMJ, Article 86 (2 Specs.). 
Specification 1:  Absent from appointed place of duty from 0600-1120, 890918.
Specification 2:  Absent from appointed place of duty from 1130-1140, 891012.
Violation of UCMJ, Article 91:  At 1340, 890831 was disrespectful to Sgt S_, by saying to him, “I am going to bust you in the fucking mouth next time because I don’t give a fuck,” or words to that effect. 
Violation of UCMJ, Article 91:  At 1807, 891008, violated BO 5560.2J, by driving on base revocation.
	Awarded forfeiture of $350.00 per month for 2 month(s) (one month’s forfeiture suspended for 6 months), restriction and extra duty for 30 days, reduction to E-2.  Appealed.  Appeal denied on 891106.

891113:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions as evidenced by four NJPs and numerous traffic violations.

891114:  	Applicant advised of his rights and having elected to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

891117:	Counseled for deficiencies in performance and conduct.  [Violations of absent from appointed place of duty, disrespect to a NCO, and driving on base revocation.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

891121:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.  The factual basis for this recommendation was four nonjudicial punishments, traffic violations and numerous counseling occasions.

891212:	GCMCA [CG, MCB, CLNC] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.

891220:	NJP for violation of UCMJ, Article 91 (2 Specs.).
Specification 1:  At 0716, 891108, failed to obey order to use chain of command by calling his CO, 1st Sgt, and the MCES Adjutant without his platoon sergeant’s or OIC’s knowledge.
Specification 2:  At 1930, 891222, after having been ordered by Sgt Maj B_ not to go in the E-Club, failed to do same.
Violation of UCMJ, Article 134: At 0730, 891109, wrongfully wore upon his uniform LCpl chevrons.
	Awarded forfeiture of $349 per month for 2 months, reduction to E-1.  No indication of appeal in the record.

891220:	Vacate suspended punishment from NJP on 891024.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19891222 under other than honorable conditions for misconduct due to minor disciplinary infractions (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).

Issues 2-4.  The Applicant’s issues are without merit.  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 five occasions and adverse counseling entries on other occasions.  While the Applicant may feel these offenses were minor, his conduct reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls well below the conduct required for an honorable characterization of service under current standards as well as those in effect at the time of his discharge.  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.

Issues 1 and 5.  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 may be 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; Article 91, disrespect to a NCO; Article 92, disobey a lawful order; Article 128, assault.

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