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

ex-LCpl, USMC 
Docket No. MD03-00567

Applicant’s Request

The application for discharge review was received on 20030212.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable or general/under honorable conditions.  The Applicant requests a documentary record discharge review.  The Applicant did not list any 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 20031229.  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 (admin discharge board required but waived), 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 am requesting a review and change of my B_ E. C_ (Applicant) discharge and character of service from Other Than Honorable Conditions to reflect under Honorable Conditions. I am not denying the reasons for my separation, I did and do take responsibility for the mistakes listed on my DD214 (AWOL) and have paid for them and regretted them every day since. I only wish that I could change the past. I was young and allowed my self to be influenced by others and thought I knew what I wanted when in reality I new nothing of the sort.

My reason for this request at this time is that I have submitted application to the city of Columbus, Ohio’s Fire Department. I wish to serve my community and help people. I am thirty-five years old and married for over seven years. We just adopted our first child and the State of Ohio through all for there background checks and investigative procedures approved me to adopt a newborn child and raise this child. I have been a contributing citizen since the day of my discharge. It has been a sixteen years since I made those errors in judgment, and I believe that I am a different and better person. I only ask that you could see me for who I am and not for who I was.”

Documentation

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

Copy of DD Form 214
Adoptive Placement Agreement, dated September 2, 2002
Letter to Applicant from Tyack, Blackmore, & Liston Co., LPA
Petition for adoption
Letter from Applicant, undated
Letter to Applicant from Director, Dept. of Public Safety. Columbus, Ohio, dated January 30, 2003
Notice of Test Results, dated November 13, 2002

PART II - SUMMARY OF SERVICE

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

	Active:    None
	Inactive: USMCR(J)		850211 - 851027	COG

Period of Service Under Review:

Date of Enlistment:  851028		Date of Discharge:  890118

Length of Service (years, months, days):

	Active:    03  02  21
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  38

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0 (7)			Conduct:  3.3 (8)

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR

Days of Unauthorized Absence:  90

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

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

Chronological Listing of Significant Service Events:

870105:	Special Court-Martial.
		Violation of UCMJ, Article 86 (2 specs):
Specification 1:  UA from 860617 to 860903.
Specification 2:  UA from 861001 to 861006.
Findings: Guilty of charge I, specification 1; not guilty of specification 2.
		Sentence:  Reduced to Pvt, confinement for 48 days.
		870303:  Convening Authority approved and ordered executed.

870305:	NJP for violation of UCMJ, Article 86: UA from 1730, 870227 to 0945, 870303.
Awarded forfeiture of $153.00 ($77.00 suspended for 6 months), restriction and extra duties for 14 days.  Not appealed.

870409:	Vacated suspended sentence from NJP dated 870305.

870410:	NJP for violation of UCMJ, Article 86: UA from 0801, 870328 to 1300, 870330.
Awarded forfeiture of $153.00 ($76.00 suspended for 6 months), restriction and extra duties for 14 days.  Not appealed.

870806:	Counseled for deficiencies in performance and conduct.  [Substandard conduct in that he has received a (special) court-martial and 2 NJP’s for Article 86.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

880622:	Counseled for deficiencies in performance and conduct.  [Frequent involvement with the UCMJ.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

881004:	NJP for violation of UCMJ, Article 91: Wrongfully disobeyed a lawful order from SSgt M_ to report to work at BAC at 1800, 881004; violation of UCMJ, Article 86: UA from 1800, 881004 to 0800, 881005.
Awarded forfeiture of $100.00, restriction for 7 days (restriction suspended for 6 months).  Not appealed.

881115:	NJP for violation of UCMJ, Article 89: Disrespectful to Lt. S_, by saying, “Fuck the Lieutenant and the office,” or words to that effect.  Violation of UCMJ, Article 91:  On or about 1000, 881105, disrespectful to Cpl H_ by saying, “Fuck you,” or words to that effect.
Awarded forfeiture of $192.00.  Not appealed.

881227:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by one special court-martial, four nonjudicial punishments, and two page 11 entries.  

881227:	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.

881227:	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 the Applicant’s special court-martial, four nonjudicial punishments, and two page 11 entries.  

890103:	GCMCA [CG, 2d MARDIV] 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 19890118 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.  The Board found that the Applicant’s age, education level, and test scores qualified him for enlistment.  While he may feel that his youth was a factor that contributed to his actions, the record clearly reflects his disregard for the requirements of military discipline and demonstrated that he was unfit for further service.  The evidence of record does not demonstrate 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.  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 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.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16C), Change 4, effective 29 Jul 87 until 26 Jun 89.

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 for more than 30 days; Article 89, disrespect to a commissioned officer; and Article 91, disobedience of the orders of a SNCO.

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