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

  , ex-PFC, USMC
Docket No. MD03-01457

Applicant’s Request

The application for discharge review was received on 20030909.  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 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.  The applicant did not respond.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040526.  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 stated

Applicant’s issues, as stated on the application:

1.  “Dear Members of the Board,

My name is (Applicant). I’m 34 years old, a husband and a father of three beautiful children. I am a law-abiding citizen, I have a clean DMV and arrest record. I am actively involved in my children's school activities, last year I assisted in coaching my son’s soccer team, I volunteer regularly at the Salvation Army here in Fresno, California serving dinner to homeless people. I assisted in a search and rescue operation in Madera County, California and I donate blood every eight weeks to the California Red Cross

I am currently employed with G.E Modular Space, in Fresno, California as a delivery driver. I am very thankful for the company in which I work for they have allowed me to provide for and support my family of five. However, I do not want to drive trucks forever, 1 feel my true calling is to become a Law Enforcement Officer. I have always wanted to he in law enforcement, even after I left the United States Marine Corps, however due to unexpected circumstances I had to put my career goals on hold to financially provide for my new arid up coming family.

In February 2003, I began Police Academy at Fresno City College, my graduation date November 14, 2003.  I’m putting in applications for employment at several different police departments, and I want to use my military background as experience, when interviewing for a Peace Officer position military experience is a plus, however my background states an Other Than Honorable Discharge. ‘This is why I’m writing to you and requesting an upgrade from Other Than Honorable Discharge to an Honorable Discharge, I know that with this upgrade I would be a. better candidate for the law enforcement position. Unfortunately I can not change my past, but I can tell you I have matured and grown quite a bit since I was in the United States Marine Corps.

I left the United Stairs Marine Corps after only two years, I was immature, young, and in love. Not realizing what the repercussions would be and how it could effect my future, I left to be with my girlfriend whom became pregnant with our oldest son. We married and later had another son. Unfortunately our marriage did not last; we were both young, and thought we knew what we wanted, we grew up and grew apart. We divorced and I received full custody of my sons, with visitations with their mother during summer. I remarried, my current wife and I together are raising our beautiful daughter and two great sons.

Now that I have the support of my family and the financial means, I am pursuing my goal to become a Law Enforcement Officer. Although is has been difficult to attend the academy at night from 5.45pm to l0:30pm, and work a full time day job, I know that it will all have been worth the hard work and strain it has put upon myself and my very supportive family. My family is the most important thing in my life. I want to give them a better future. I want to help my community become a safer place to live, to help get drugs off the streets, and to make it safe for children to play outside without fear. I want to give back to my community and help my fellow man, doing these things definitely makes all the hard work well worth it.

Again I ask you to please approve my request to upgrade my Other Than Honorable Discharge to an Honorable Discharge, so I can try to make up for my immature actions, by giving back to my community. I can not change the past; it's a regret I must live with for the rest of my life, but I can change my future with your help.

Thank you,”

Documentation

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

Letter from NCPB to Congressman

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		860814 - 870811	COG

Period of Service Under Review:

Date of Enlistment:  870812		Date of Discharge:  890801

Length of Service (years, months, days):

	Active:    01  11  20  (Does not include lost time)
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  34

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.1 (7)			Conduct:  3.9 (7)

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  39

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:

880106:	NJP for violation of UCMJ, Article 92: On 871218 was derelict in his duties as a firewatch by falling asleep on his post.
Awarded forfeiture of $150.00, restriction and extra duties for 15 days (restriction suspended for one month).  Not appealed.

880315:	Counseled for deficiencies in performance and conduct.  [Citation for driving on suspended/revoked driving privileges due to not having car insurance.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

880406:	NJP for violation of UCMJ, Article 121: Wrongfully appropriate a M12A1 illumination flare.
Awarded forfeiture of $100.00, restriction and extra duties for 7 days.  Not appealed.

880407:	Counseled for deficiencies in performance and conduct.  [Frequent involvement with both civilian and military authorities.  Your immaturity, poor judgment, and substandard performance are unacceptable behavior for a Marine.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

880825:	NJP for violation of UCMJ, Article 91: Disrespectful to Cpl H_; violation of UCMJ, Article 134: Communicate a threat to injure Cpl H_.
Awarded forfeiture of $175.00, restriction and extra duties for 14 days (restriction and extra duties suspended for 6 months).  Not appealed.

890530:	NJP for violation of UCMJ, Article 86 (4 specs):
		Specification 1: UA from 0601, 890206 to 2018, 890220.
Specification 2: UA from 0731, 890227 to 2230, 890322.
Specification 3: UA from 2001, 890403 to 1935, 890405.
Specification 4: Fail to go to PT formation on 890505.
Violation of UCMJ, Article 90: Willfully disobeyed 2Lt. O’C_’s order to be at company formation.
Awarded forfeiture of $345.00 per month for 2 months, restriction and extra duties for 45 days, reduction to Pvt.  Not appealed.

890626:	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 four nonjudicial punishments.

890626:	Applicant advised of 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.

890626:	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 an established pattern of discreditable involvement with military authorities.

890711:	SJA review determined the case sufficient in law and fact.

890711:	GCMCA [CG, 1st FSSG] 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 19890801 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 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 discharge sufficient to warrant an upgrade.  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 90, disobeyed a lawful order from a commissioned officer; Article 91, disrespect to a NCO; Article 92, disobey a lawful order; and Article 121, larceny.

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