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

ex-PFC, USMC
Docket No. MD05-00207

Applicant’s Request

The application for discharge review was received on 20041103.  The Applicant requests 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 any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050210.  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:  GENERAL (UNDER HONORABLE CONDITIONS)/NON-RETENTION ON ACTIVE DUTY, authority:  MARCORSEPMAN Par. 1005.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “In regards to why I feel my discharge should be changed.  I feel that my time served and my active duty status were met to fulfill my contract obligation to the Marine Corps.  I am trying to pursue taking advantage of my Montgomery GI Bill benefits.  I am asking, with sincerity, to review my discharge circumstances.  Going back to my special court-martial case and, in regards, to the errors that were made by my former Battalion.  As well as, the discrepancies of how my case was judged and decided upon with regards to my pre-trial agreement and punishment.  I would ask that my active duty time served be taken into consideration.  With regards to my involuntary withholding and involuntary separation beyond my EAS.  I am currently in the process of a career change that will allow me to exercise some of my leadership characteristics and qualities that I developed from being in the U.S. Marine Corps.  Which I will pursue, regardless, of the decision made on my discharge.  So as a former U.S. Marine, I ask that my discharge be reviewed for upgrade on the above written facts.  Please review as for one request on my behalf.  My second request is that I feel that my discharge should fall under Category 3 of the MGIB VA Pamphlet, 22-90-2, revised issue.  I am attaching copies to this letter that will highlight this issue of concern.  I truly feel that I invested and agreed to fulfill my contract obligation to the Marine Corps.  I also, paid the $1200.00 to invest in my MGIB benefits.  I do not want any other reimbursement option for these benefits.  I do understand that my service record is questionable and my conduct prior to my court-martial was unsatisfactory, to imply kindly.  But my future lies upon your decision based on my argument.  I simply need my discharge upgraded to fulfill my future and educational skills.  I am interested in becoming a California State Correctional Officer.  I do not need any further educational skills to become an officer, than what I already have.  I still would like to advance my education to a higher level.  To pursue in a criminal justice field.  I feel that if a decision could be made on my discharge upgrade, I will succeed as a Marine and a Correctional Officer.  Please take in to regards, my request, and my sincerity with this letter.  I do not know if I’m correct on this, but if there is a certificate 215 upgrade, rather than my discharge upgrade, I would like this as an, honorable discharge option.  Finally, thank your time in effort in pursuing my request and in your decision.
Question #6, in addition, requesting upgrade for purpose of obtaining my Montgomery GI Bill benefits.  Justification undetermined; based upon information that I will provide for review.”

Documentation

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

Applicant’s DD Form 214
Two letters from DVA
MGIB information page
Supporting letter from Applicant
Five pages from service record
Three pages of correspondence from California Department of Corrections 
Two receipts for fees paid

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		941007 - 941128	COG

Period of Service Under Review:

Date of Enlistment:  941129		Date of Discharge:  010716

Length of Service (years, months, days):

	Active:    06  07  18  (Does not exclude confinement)
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  51

Highest Rank:  LCpl			MOS:  3533

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (12)			Conduct:  3.8 (12)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, CC, RSB

Days of Unauthorized Absence:  None

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

GENERAL (UNDER HONORABLE CONDITIONS)/NON-RETENTION ON ACTIVE DUTY, authority:  MARCORSEPMAN Par. 1005.

Chronological Listing of Significant Service Events:

960709:	Counseled for deficiencies in performance and conduct.  [Failure to follow regulations and UA from BN formation.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960709:	NJP for violation of UCMJ, Article 86: UA from formation at 2100, 960630; violation of UCMJ, Article 92: Being in Bridgeport permanent personnel barracks after being told not to do so.
	Award:  Forfeiture of $237.00 (suspended for 6 months), restriction and extra duty for 14 days.  No indication of appeal in the record.

961030:	Vacate suspended punishment from NJP of 960709.

961118:	Counseled for deficiencies in performance and conduct.  [UA from 0730-1300, 961010.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970106:	Counseled for deficiencies in performance and conduct.  [Changed a price tag on a video game at the MCX.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970114:	NJP for violation of UCMJ, Article 121: Changed the price of a video game to a lesser value at the MCX.
	Award:  Forfeiture of $490.00 for 2 months, restriction for 60 days, reduction to PFC (forfeiture and restriction suspended for 6 months).  No indication of appeal in the record.

980507:	NJP for violation of UCMJ, Article 117: Used provoking words on 980412 and 980419.
	Award:  Forfeiture of $276.00, restriction and extra duty for 14 days, reduction to PFC (forfeiture and restriction suspended for 6 months).  Not appealed.

980702:	Vacate suspended punishment from NJP of 980507.

 980714:	NJP for violation of UCMJ, Article 117: Used provoking words on 980626; violation of UCMJ, Article 128: Assaulted LCpl M_.
	Award:  Forfeiture of $519.00 for two months, restriction and extra duty for 45 days, reduction to PFC (forfeiture suspended for 6 months).  No indication of appeal.

981218:	Special Court-Martial.
	Charge I:  Violation of the UCMJ, Article 121 (3 Specifications):
	Specification 1:  At BEQ 2441, room 327, Camp Hansen steal 3 stereos, valued at more than $100.00 on 980728.
	Specification 2:  At BEQ 2441, room 323, Camp Hansen steal 1 stereo, 1 playstation, and 1 playstation game, valued at more than $100.00 on 980728.
	Specification 3:  At BEQ 2441, room 338, Camp Hansen steal an alarm clock, Nintendo 64 game system, six games, gym bag, and a VCR, valued at more than $100.00 on 980728.
Findings:  To Charge I and specifications 1 and 3 thereunder, guilty.  To specification 2, guilty excepting the playstation.  
	Sentence:  Fine of $600.00 for four months, confinement for 120 days, reduction to E-1, and a bad conduct discharge.
	CA 990409:  Sentence approved and ordered executed except for the BCD.
	
981218:	To confinement, sentence of SPCM.

990324:	From confinement, to duty.

990406:	To appellate leave.

010514:	NMCCA:  Set aside findings and sentence and authorized a rehearing.  The Government concedes that the appellant’s guilty pleas were improvident.

010716:	SSPCMO:  NMCCA set aside the findings and sentence and authorized a rehearing.  It is impracticable to hold a rehearing in this case and a rehearing will not be held.  The finding of guilty and the sentence are set aside and the charges are dismissed.  All rights, privileges, property of which the accused has been deprived by virtue of the findings of guilty and sentence so set aside will be restored.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010716 with a general (under honorable conditions) due to non-retention on active duty (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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 (C and D).

Issue 1.  Marines discharged due to non-retention on active duty receive a characterization of service determined by their average conduct and proficiency markings.  The Applicant’s average conduct markings fall below the standard required to receive an honorable discharge.  An upgrade to honorable is inappropriate.  Relief is therefore denied.

The Veterans Administration determines eligibility for post-service benefits, not the NDRB.  There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans’ benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.
 
The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question.  No such inequity or impropriety 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, 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.  The Applicant’s evidence of post-service conduct was found not to mitigate his misconduct sufficient to warrant an upgrade to his discharge.  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 1005, DISCHARGE FOR EXPIRATION OF ENLISTMENT OR FULFILLMENT OF SERVICE OBLIGATION, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 31 Jan 97 until 31 August 2001.

B.  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.

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

D.  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