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

ex-Pvt, USMC
Docket No. MD05-00186

Applicant’s Request

The application for discharge review was received on 20041109.  The Applicant requested the characterization of service received at the time of discharge be changed to honorable.  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 20050118.  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 – Minor disciplinary infractions (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.2.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “To Whom It Might Concern,

I S_ M M_ (Applicant) wish to apologize to the U. S. Marine Corps for my conduct in 1992 wich led to a other than honorable discharge.  I am applying for a Honorable discharge so I can get my life together.  I hope my time as a combat vet in the 90 – 91 Gulf War will help me to get an Honorable Discharge.  “I need your help.”

Yours truly
S_ M M_ (Applicant)
(signed)

P. S. I served in HMM 165, in K-Bay Hawii as a helicopter mech.”

Documentation

The Applicant elected not to submit any additional or supporting documentation for the Board’s consideration.  He marked the box "WILL NOT BE SUBMITTED.  PLEASE COMPLETE REVIEW BASED ON AVAILABLE SERVICE RECORDS" on the back of his DD Form 293. 

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR (J)			890721 - 891022	COG

Period of Service Under Review:

Date of Enlistment:  891023		Date of Discharge:  920424

Length of Service (years, months, days):

	Active:    02  06  02
	Inactive:  None

Age at Entry:  20			Years Contracted:  5

Education Level:  12			AFQT:  43

Highest Rank:  LCpl			MOS:  6112 (Helicopter Mechanic CH-46)

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (7)		Conduct:  4.0 (7)

Military Decorations:  MeritM

Unit/Campaign/Service Awards:  NDSM, SASM (w/2*), SSDR

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Minor disciplinary infractions (administrative discharge board required but waived), authority:  MARCORSEPMAN Par. 6210.2.

Chronological Listing of Significant Service Events:

900618:	NJP for violation of UCMJ, Article 92:  Failure to obey a lawful order …
Awarded forfeiture of $150.00 per month for 1 month, and 15 days restriction and extra duties.  Forfeiture of $50.00 per month for 1 month, and 15 days restriction and extra duties susp for 3 mos.  Not appealed.

911031:	NJP for violation of UCMJ, Article 86:  Fail(ed) to be at the appointed place of duty at the appointed time.
Awd red to PFC, E-2, forfeiture of $230.00 per month for 2 months, and 45 days restriction and extra duties.  Red susp for 6 mos.  Not appealed.

911211:	Counseled for deficiencies in performance and conduct.  [Poor attitude and substandard performance.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920203:	Suspended sentence imposed at NJP is hereby vacated and the punishment was ordered executed.

920205:	NJP for violation of UCMJ, Article 90:  Willfully disobeyed a lawful order of a superior commissioned officer …
Violation of UCMJ, Article 123a:  … drafting checks without sufficient funds …
Awd red to PVT, E-1, forfeiture of $363.00 per month for 2 months, and 45 days restriction and extra duties.  Forf susp for 2 mos.  Not appealed.

920310:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions as evidenced by the Applicant’s “three nonjudicial punishments.” 

920310:	Applicant advised of rights and having consulted 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.

920310:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.  The factual basis for this recommendation was the Applicant’s “three nonjudicial punishments.” 

920326:	SJA review determined the case sufficient in law and fact.

920402:	GCMCA [Commanding General, 1st Marine Expeditionary Brigade] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.

920413:	Counseled for deficiencies in performance and conduct.  [Alcohol related incident, specifically, interfering with a Military Policeman in the performance of his official duties on 920403.]  Necessary corrective actions explained, sources of assistance provided, and due to your refusal to attend Level II Alcohol Education, advised of the closest VA medical Facility for services.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19920424 under other than honorable conditions for misconduct due to minor disciplinary infractions (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:  In the Applicant’s case, the Board discovered no impropriety or inequity and considers his discharge proper and equitable. A service characterization of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a member of the United States Marine Corps.  The record is devoid of any evidence the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  The Applicant’s service record is marred by several negative page eleven counseling entries and the awarding of nonjudicial punishment (NJP) on three separate occasions, substantiating his misconduct.  The Applicant’s summary of service clearly reflects his disobedience of the orders and directives regulating good order and discipline in the naval service, and demonstrated he was unsuitable for further service. An upgrade to honorable would be inappropriate.  Relief denied.
 
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 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, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.   The Applicant did not provided any documentation for the Board to consider during the deliberation of his case.  Relief denied.
 
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 P1900.16D), 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, Willfully disobeying superior commissioned officer; Article 92, Failure to obey an order; Article 123a, Making, drawing, or uttering check, draft, or order without sufficient funds.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		Secretary of the Navy Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023