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

 ex-PVT, USMC
Docket No. MD03-01501

Applicant’s Request

The application for discharge review was received on 20030917.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a documentary record 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 20040617.  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.  “When I was discharged from the Marines eight years ago, I quickly learned that there was no civilian counterpart to my M.O.S. – 2621 – Manual Morse Intercept/Operator.  Since discharge, I’ve been driving and seeing the country by way of an eighteen wheeler “Big Rig” truck.  But as I’m getting older, I’m going back to school for computer programming/design/security/data entry, and with that being a heavy load, I respectfully request under honorable conditions so I can take advantage of the GI Bill benefit to help me pay for some of the school.  Thank you – (Applicant).”

Documentation

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

Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   			None
	Inactive: USMCR (J)		910418 - 911217	COG

Period of Service Under Review:

Date of Enlistment:  911218		Date of Discharge:  960112

Length of Service (yì¥Á_
 	___ø_¿_______________rc__
 DEPARTMENT OF THE NAVY NAVAL DISCHARGE REVIEW BOARD (NDRB)                     DISCHARGE REVIEW                   DECISIONAL DOCUMENTD, ex-PVT, USMCDocket No. MD03-01501Applicant’s RequestThe application for discharge review was received on 20030917.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a documentary red minor disciplinary infractions of the UCMJ.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940627:	Counseled for deficiencies in performance and conduct.  [Counseled concerning being eligible but not recommended for promotion to LCpl for the month of July because of a lack of military bearing, initiative and other qualities expected of a Marine LCpl.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940923:	NJP for violation of UCMJ, Article 86:  UA fr appointed place of du (Fo’c’sle Bldg 1566) at 0800 on 940919 for training.
Awd red to PFC/E-2, 7 days extra duties and restriction.  Not appealed.

941108:	Counseled for deficiencies in performance and conduct.  [Counseled concerning lack of responsibility and poor judgment.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950214:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 117.
	Specification:  wrongfully used reproachful words towards Airman M_ P_, U. S. Air force.
	Charge II:  violation of the UCMJ, Article 134.
	Specification:  disorderly conduct of a nature to bring discredit upon the armed forces.  
	Findings:  to Charge I and the specification thereunder, guilty; and to Charge II and the specification thereunder, guilty.
	Sentence:  Reduced to paygrade E-1.
	CA action 950221:  Sentence approved and ordered executed.

950405:	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 three nonjudicial punishments for Unauthorized Absence, one Court-Martial for Wrongful Use of Reproachful Words, and four page eleven councelling entries for numerous deficiencies.

950405:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

950823:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to a pattern of misconduct, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

950922:	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 final recommendation of the board, by a vote of 3 to 0, in favor of separating (the Applicant).

951213:	SJA review determined the case sufficient in law and fact.

960102:	GCMCA [Commanding General Marine Corps Base Quantico, VA] 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 19960112 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 has no authority to upgrade a discharge for the sole purpose of enhancing post-service educational opportunities as requested in the issue.  The Board’s regulations limit its review to a determination regarding the propriety and equity of a discharge.  In the Applicant’s case the Board discovered no impropriety or inequity thereby considering the Applicant’s discharge as proper and equitable.

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, an employment record, documentation of community service, certification of non-involvement with civil authorities and evidence of a substance free lifestyle, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.  

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  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 18 Aug 95 until 30 Jan 97. 

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, Absence without leave; Article 117, Provoking speeches or gestures; or Article 134, Disorderly 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