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

 ex-Pvt, USMC 
Docket No. MD03-00534

Applicant’s Request

The application for discharge review was received on 20030211.  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 did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040205.  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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I L_ W_ R_ III (Applicant) am respectfully requesting review of my discharge for I am wanting to pursue a career in the U.S. Border Patrol.  While I was in the Marine Corps I had received a DUI and put on two years of probation.  It has been suspended and/or put on unsupervised probation so I can go into the Border Patrol for I was denied entry into the U.S. Marshal Service for that reason.  Also I have applied to the University of Phoenix online to get Bachelor's Degree in Criminal Justice.  The Dept. of Veterans Affairs said I cannot use my MGIB unless my discharge is Honorable.  I appreciate your time.

Thank you, 
L_ W_ R_ III”

Documentation

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

Applicant’s DD Form 214 (Member 1 and 4) (2) 
Test admission note, dated July 23, 2002
Border Patrol Agent language certification sheet, dated July 23, 2002
District Court of Maryland, Traffic System Event Information
United States Marshall Service written examination notice
Applicant’s résumé
Character reference from Captain, USMC, dated March 27, 2002 (2)
Verification of military experience and training (6 pages)
Marine OnLine – Unit Training, dated March 8, 2002 (7 pages)
DCII Person Search Results for Applicant, dated March 1, 2002
US Government Motor Vehicle Operator’s Identification Card
Armed Forces of the United States ID Card
Ohio driver license
Medical Examiner’s Certificate for Drivers
Certificate of completion card
List of Schools/certificates/awards
Forty-one pages from Applicant’s service
Application for Federal Employment

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		980328 - 980512	COG

Period of Service Under Review:

Date of Enlistment:  980513		Date of Discharge:  020329

Length of Service (years, months, days):

	Active:    03  10  17
	Inactive:  None

Age at Entry:  23			Years Contracted:  4

Education Level:  11			AFQT:  39

Highest Rank:  Cpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  NMF*			Conduct:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  Certificate of Commendation, MM

Days of Unauthorized Absence:  2

*No Marks Found in the service record

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.3.

Chronological Listing of Significant Service Events:

010212:	Counseled for deficiencies in performance and conduct.  [Minor infractions of the UCMJ.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010223:	NJP for violation of UCMJ, Article 86:
Specification: Absent from appointed place of duty on 0700-0900, 010205.
Awarded forfeiture of $653.00 per month for 1 month, restriction for 45 days, reduction to LCpl.  Restriction and reduction suspended for 6 months.  Not appealed.

010313:	Vacated suspended restriction and reduction awarded at CO’s NJP dated 010223.

010319:	NJP for violation of UCMJ, Article 86:
Specification:  Absent from appointed place of duty on 0930, 010310, to wit: Bldg 901 for CBIRF IRF recall.
Violation of UCMJ, Article 92:
Specification: Fail to obey an order or regulation on 0930, 010310, to wit: to maintain an operable pager as directed by the IRF policy letter.
Awarded forfeiture of $500.00 per month for 1 month, restriction for 60 days, reduction to PFC.  Forfeiture of $300.00 and restriction suspended for 6 months.  Not appealed.

010810:	Vacate suspended forfeiture and restriction at CO’s NJP dated 010319.

010810:	NJP for violation of UCMJ, Article 86:
Specification: Absent from appointed place of duty on 0700, 010803, to wit: Battalion formation.
Violation of UCMJ, Article 112:
Specification: Drunk on duty on 0700, 010803.
Awarded forfeiture of $521.00 per month for 1 month, restriction for 60 days, reduction to Pvt.  Forfeiture of $521.00 for 1 month suspended for 6 months.  Not appealed.

010905:	Vacate suspended forfeiture awarded at CO’s NJP dated 010810.

010907:	NJP for violation of UCMJ, Article 134:
Specification: Breaking restriction on 0315, 010901, to wit: Base Police notified the Assistant Command Duty Officer that Applicant had been positively identified at the Blue Dog Saloon.
Awarded forfeiture of $243.00 per month for 2 months, restriction and extra duties for 45 days.  Appealed  010908.  Appeal denied 011030.

010927:	Applicant to unauthorized absence 0731, 010927.

010929:	Applicant from unauthorized absence 1227, 010929 
                     (2 days/surrendered).

010929:	Applicant to confinement.

011018:	Applicant from confinement.

020206:	An Administrative Discharge Board, based upon a preponderance of the evidence, found that the Applicant had committed misconduct due to a pattern of misconduct, that the misconduct warranted separation, and recommended discharge general (under honorable conditions).  [Date and partial information extracted from Commanding Officer’s letter dated 020306.]

020306:	Commanding Officer concurred with the administrative discharge board’s recommendation to discharge Applicant under honorable conditions (general) by reason of misconduct due to a pattern of misconduct.

020318:	SJA review determined the case sufficient in law and fact.

020318:	GCMCA [Commanding General, 4th Marine Expeditionary Brigade (AT) Camp Lejeune, NC] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

Only a partial discharge package was available for review.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020329 under honorable conditions (general) 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.  The Veterans Administration determines eligibility for post-service benefits, not the NDRB.  There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans’ benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

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, to enhance employment opportunities, or for 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 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; Article 112, drunk of duty; and Article 134, break restriction.

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