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

ex-PFC, USMC
Docket No. MD05-00412

Applicant’s Request

The application for discharge review was received on 20050103.  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 any representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representation from the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050428.  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.  “I E_ W. A_ (Applicant) have been a outstanding citizen since my discharge.  I feel I was just a young naive man at that time but it has been 10 yrs and hope I am forgiven.”

Additional issues submitted by Applicant’s representative (American Legion):

2.  “Equity Issue:  Based on our review of evidentiary record and on behalf of this former member, we request that the Board also consider provisions of SECNAVINST 5420.174D, Part IV, Paragraph 403 m (7), as it pertains to post-service conduct, in assessing the merits of this application.

In accordance with Title 32, CFR, section 724.116 and SECNAVINST 5420.174D, Part I, Paragraph 1.20, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue and following statement in supplement to this Applicant’s petition.

Review of the service record reveals that this former member maintained satisfactory Proficiency/Conduct markings of 3.9/3.0 and earned the NDSM and RSB.  He was awarded NJP on 910501 for VUCMJ, Article 128;  NJP on 910828 for VUCMJ, Article 86 and convicted by SPCM on 920618 for VUCMJ, Article 128 Following due process notifications, he was discharged Under Other Than Honorable Conditions due to misconduct as authorized by MARCORSEPMAN, Paragraph 6210.5.

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because youth and immaturity extenuated his misconduct of record and because he has been a good citizen.  He has not submitted any additional documentation for consideration.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised.  To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by Title 10, USC, Section 1553, and set forth in Title 32, CFR, Part 724 and SECNAVINST 5420.174D.

This case is now respectfully submitted for deliberation and disposition.”

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)		900330 - 901105	COG

Period of Service Under Review:

Date of Enlistment:  901106		Date of Discharge:  920828

Length of Service (years, months, days):

	Active:    01  09  23	Does not exclude lost time
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  38

Highest Rank:  PFC			MOS:  0811

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (10)			Conduct:  3.9 (10)

Military Decorations:  None

Unit/Campaign/Service Awards:  RSB, NDSM

Days of Unauthorized Absence:  33

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:

910430:	Counseled for deficiencies in performance and conduct.  [Assaulting other Marines and any other infractions of the UCMJ.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

910501:	NJP for violation of UCMJ, Article 128:
Specification: Assault, to wit: assaulted Pvt S_ by punching him in the nose with closed fist.
Awarded forfeiture of $197.00 per month for 1 month, restriction and extra duties for 14 days.  Restriction and extra duty suspended for 6 months.  Not appealed.

910610:	Vacate restriction and extra duty awarded at CO’s NJP dated 910501.

910705:	Applicant in hands of civilian authorities 2330, 910705.  Applicant arrested in Oceanside, CA for assault on a woman who was trying to stop a fight that PFC A_ (Applicant) had provoked.  [Extracted from Applicant's platoon commander's letter dated 920109.]

910725:	Applicant from unauthorized absence (20 days/apprehended).

910726:	NJP for violation of UCMJ, Article 86:
Specification: Fail to go at the time prescribed to appointed place of duty on 0430, 910606, to wit: San Clemente State display.
Awarded forfeiture of $189.00 per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

910821:	Counseled for deficiencies in performance and conduct.  [Unauthorized absence and your frequent involvement with military/civilian authorities.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

911209:	Civil Conviction:  Municipal Court, Vista, CA for violation of assault with deadly weapon.
	Plea:  Guilty.
Sentence:  Not found in service record.

911231:	Applicant in hands of civilian authorities.

920108:	Counseled for deficiencies in performance and conduct.  [Not
recommended for promotion to LCpl due to recent involvement with
civilian authorities.]

920113:	Applicant from unauthorized absence (13 days/apprehended).

920114:	Counseled for deficiencies in performance and conduct.  [Impersonal conduct and bearing.  Concerning frequent burst of temperamental attitude and disrespect toward other Marines and NCOs and your frequent involvement of a discreditable nature with military/civilian authorities.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920210:	Counseled for deficiencies in performance and conduct.  [Not recommended for promotion due to poor attitude, lack of leadership and MOS proficiency.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920403:	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 two nonjudicial punishments, numerous adverse counseling entries, and a civilian arrest for assault with a deadly weapon.

920407:	Applicant notified of intended recommendation for discharge by reason of misconduct due to a pattern of misconduct and that the least favorable characterization of service that he may receive is under other than honorable conditions.

920407:	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.

920503:	Applicant to pretrial confinement.

920617:	Applicant from pretrial confinement.

920618:	Special Court Martial:
	Charge I: violation of the UCMJ, Article 128:
	Specification: Assault.
	Findings: to Charge I and specification thereunder, guilty.
	Sentence: Confinement for 1 month, reduction to E-1.
	CA Not found in service record.
	Military judge ordered 45 days administrative credit for Applicant’s time in pretrial confinement.

920720:	SJA review determined the case sufficient in law and fact.

920727:	GCMCA, Commanding General, 1st Marine Division (Rein) 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 19920828 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).

Issues 1 and 2:  An under other than honorable conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by 33 days of unauthorized absence, four disciplinary and discharge warnings, two nonjudicial punishment (NJP) proceedings for violations of Articles 86 and 128 of the UCMJ, a civilian conviction for assault with a deadly weapon, and a special court-martial for another violation of Article 128 of the UCMJ.  The Applicant contends that these problems can be attributed to his being a "young naive man at the time."  While he may feel that his immaturity was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Relief on this basis is 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 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 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.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  At this time, the Applicant has not provided such documentation for the Board to consider an upgrade.

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 documentation to support any claims of post-service accomplishments or any other evidence related to his discharge 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 128, Assault.

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