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

 ex-LCpl, USMC
Docket No. MD03-01261

Applicant’s Request

The application for discharge review was received on 20030717.  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 a representative on his DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040430.  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 stated

Applicant’s issues, as stated on the application:

“1.  I served three years and ten months.  I believe that should speak for itself.  There is not a day that goes by that I do not wish I could change the outcome of my time within The Marine Corps.”

Documentation

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

None submitted.

PART II - SUMMARY OF SERVICE

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

	Inactive: USMCR(J)		950825 - 960617	COG

Period of Service Under Review:

Date of Enlistment:  960618		Date of Discharge:  000414

Length of Service (years, months, days):

	Active:    03 09 27
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  78

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (9)			Conduct:  3.6 (9)

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, authority:  MARCORSEPMAN Par. 6210.3.

Chronological Listing of Significant Service Events:

970513:	NJP for violation of UCMJ, Article 134:  Drunk and Disorderly, fighting in Okinawa City, Okinawa, Japan on or about 0215, 26 April 1997
Awarded forfeiture of 7 das pay.  Total forf of $244.00.  Awd restr for a period of 7 days.  Not appealed.

970529:	NJP for violation of UCMJ, Article 86:  Absent from work section, Supply Warehouse, HqCo, 4th Mar, Camp Schwab, Okinawa Japan on or about 0700 on 24 May 97.  Violation of UCMJ, Article 91:  Failed to follow a lawful order from his NCO Cpl B_.
Awarded forfeiture of $244.00 per month for one month, restriction and extra duties for 14 days.  Not appealed.

970530:	Counseled for deficiencies in performance and conduct.  [Continued problems involving alcohol.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

970811:	NJP for violation of UCMJ, Article 128:  Assault by striking at Sgt C_ on or about 2345 on 25 Jul 97.  Violation of UCMJ, Article 92:  Failed to follow a lawful order from Sgt C_.  Violation of UCMJ, Article 91:  Disrespectful language toward Sgt C_. 
Awarded reduction to E-2, forfeiture of $505.00 per month for 2 months, and restriction 60 days.  Not appealed.

981218:	NJP for violation of UCMJ, Article 91:  Insubordinate conduct toward Staff-Noncommissioned Officer.  Violation of UCMJ, Article 134:  Drunk and Disorderly with conduct of a nature to bring discredit upon the Armed Forces.  
Awarded forfeiture of $244.00 per month for one month (suspended for 6 mo.), restriction and extra duties for 14 days.  Not appealed.

991122:	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 a pattern of misconduct throughout his enlistment.

991122:	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.

991122:	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 “documented alcohol treatment failure and patter(n) of misconduct resulting in numerous counselings and Non-judicial punishments.”  

000316:	SJA review determined the case sufficient in law and fact.

000323:	GCMCA [Commanding General, 2d Marine Division, II Marine Expeditionary Force] 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 20000414 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:  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the Applicant’s enlistment.  While he may feel the time he served in the Marine Corps should be considered in reviewing his discharge, it does not mitigate the Applicant’s disobedience of the orders and directives, which regulate good order and discipline in the naval service.  The Applicant’s service record is marred by the awarding of nonjudicial punishment (NJP) on four separate occasions substantiating his misconduct.  His conduct clearly demonstrated he was unsuitable for further service.  It must be noted that most Marines serve honorably and well; thereby, earning honorable discharges.  In fairness to those Marines, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization of service than is due.  An upgrade to honorable conditions would be inappropriate.  Relief denied.

While 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.  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 provided no such evidence for this Board to consider at this time.

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:  Absent from appointed place of duty, Article 91 (3):  Insubordinate conduct toward a noncommissioned officer, Article 92:  Failure to obey order or Regulation, Article 128:  Assault, and Article 134 (2):  Drunk and Disorderly with conduct.

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