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

 ex-PFC, USMC
Docket No. MD05-00692

Applicant’s Request

The application for discharge review was received on 20050316.  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 discharge 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 20050713.  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. 6210.2.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I am asking for my Discharge to be upgraded to General Under Honorable conditions because I am trying to better my life.  I made one mistake when I was nineteen years old and am trying to move on.  I am currently trying to become a Massachusetts Corrections Officer.  A Discharge upgrade would give me a better chance of serving my community.  Your help would be appreciated.

[signed]
J_ P_ D_ 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)		951109 - 951226	COG

Period of Service Under Review:

Date of Enlistment:  951227			Date of Discharge:  980924

Length of Service (years, months, days):

	Active:    02  08  29	Does not exclude lost time
	Inactive:  None

Age at Entry:  17 (Parental Consent)	Years Contracted:  4

Education Level:  11 GED			AFQT:  41

Highest Rank:  LCpl				MOS:  0431

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.6 (6)			Conduct:  2.8 (7)

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, AFSM, RSB

Days of Unauthorized Absence:  40

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.2.

Chronological Listing of Significant Service Events:

961028:	Counseled for deficiencies in performance and conduct.  [Your consistent trend of tardiness.  Your repeated violations of Article 86, Unauthorized absence of the UCMJ, and the failure to take the previously recommended course of action displays a severe lack of judgment and exceptionally poor time management.  This performance is a disgrace to yourself and to the Marine Corps.  You will comply with all Marine Corps regulations regarding personal accountability.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

961028:	Applicant informed because of failure to demonstrate leadership qualities, no recommended for promotion at this time.  [Extracted from counseling entry dated 961028.]

970929:	Counseled for deficiencies in performance and conduct.  [Your violation of Battalion Order 1050.1P, by willfully and verbally admitting to being out of bounds without an out of bounds chit, during a regular (2 day) weekend liberty period.  Out of bounds chits are a requirement for all personnel when leaving the specified liberty boundaries.  Lack of an out of bounds chit could waive all financial liability of the U.S. Marine Corps in the event of serious injury or death.  Individual SGLI coverage may not be honored and you may be required to pay for all medical expenses.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

971101:	Applicant informed eligible but not recommended for promotion to Corporal for the November promotion quarter/period because of PFT failure.

980121:	Counseled for deficiencies in performance and conduct.  [On 971205 you were given an annual physical fitness test, a test you failed with a score of 97 and 0 pull-ups.  Since then you have been placed on the remedial training program, but due to a lack of effort on your part, you have showed no progress.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980323:	Counseled for deficiencies in performance and conduct.  [Lack of knowledge, lack of initiative and drive, and being dropped from the AMC Load Planners course.]  Necessary corrective actions explained and sources of assistance provided.  Applicant advised that a failure to meet standards could result in an administrative reduction.

980410:	Applicant to unauthorized absence 0800, 980410.

980415:	Applicant informed eligible but not recommended for promotion to Corporal for the May promotion quarter because of unauthorized absence and weight control.

980425:	Applicant declared a deserter.

980520:	Applicant apprehended by Fitchburg MA Police Department at 2330, 980520.

980521:	Applicant returned to MCACU Washington, DC.

980523:	Applicant to confinement.

980626:	Pretrial agreement requested and approved. In exchange for the withdrawal of the charge preferred for Special Court Martial, the Applicant agrees to accept either a Summary Court-Martial or Non-judicial Punishment.  The Applicant agrees to admits responsibility (NJP) or plead guilty (SCM) to the Specification and the Charge.  Applicant advised of the meaning and effect of his guilty plea and understands all related effects and consequences.  The Applicant has consulted with legal counsel.  The Applicant agrees to waive any right to an administrative board in the event that the convening authority chooses to process him for administrative discharge.

980629:	Applicant from confinement.

980707:	NJP for violation of UCMJ, Article 86:
Specification: Unauthorized absence from 0801, 980410 to 2330, 980520.
Awarded forfeiture of $519.00 per month for 2 months, reduction to E-2.  Not appealed.

980801:	Applicant notified of intended recommendation for discharge by reason of misconduct due to minor disciplinary infractions.  The least favorable characterization which you may receive is under other than honorable.  The CO is recommending that the Applicant receive a characterization of service of Under Other Than Honorable.

980801:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

980801:	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 based upon Private First Class D_’s battalion level NJP for going UA in excess of one month and the unwillingness to conform to the standards set forth by the Marine Corps documented in his SRB by numerous page 11 entries.  

980914:	SJA review determined the case sufficient in law and fact.

980921:	GCMCA, Commanding General, 2d Marine Division, II Marine Expeditionary Force, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19980924 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).

The Applicant contends that he made one mistake when he was nineteen.  While he may feel that his young age 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 denied.

When the service of a member of the U.S. Marine Corps has been honest and faithful, it is appropriate to characterize that service as honorable.  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 3 retention warnings and a  nonjudicial punishment proceeding for violation of Article 86 (UA for 40 days and declared a deserter) of the UCMJ.  According to the UCMJ, unauthorized absence for more than 30 days is considered a serious offense.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board.  The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  

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 P1900.16E), effective 31 Jan 97 until 31 Aug 2001. 

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 for more than 30 days.

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