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

FOR OFFICIAL USE ONLY

 ex-PVT, USMC
Docket No. MD05-00822

Applicant’s Request

The application for discharge review was received on 20050404.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant designated American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051020.  After a thorough review of the available 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 by reason of misconduct due to a pattern of misconduct.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I think my discharge should be upgraded for several reasons one is because I am an outstanding citizen right now thanks to the Marines. I learned a lot that mad me to the man I am today.  I am currently attending Wilson Technical Comm. College to obtain a degree in Biochemical’s.  I am currently working as documents show and supporting my family and me.  I currently need my upgrade changed because it is very hard for me to support my family and me and also got to school to further my education with the little checks I get.  Therefore I ask will you please reconsider my discharge and thank you for your time.

                                         [signed]
incidents that happened while in the military were amplified because of prior things I had done as a civilian kid.  But overall I was a good marine.  I have completely made a turn around for the sake of myself and my family.” 
My discharge was improper because of small

Documentation

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

Applicant’s DD Form 214 (2)
Earnings Statement dtd March 16, 2005
Enrollment Verification Letter from F_ K_, Dean, Wilson Technical Community College dtd March 24, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	20010814 – 20011112		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20011113		Date of Discharge:  20030415

Length of Service (years, months, days):

Active:    01  05  03  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  none
	Confinement:		  none

Age at Entry:  18 

Years Contracted:  4 

Education Level:  12				AFQT:  37

Highest Rank:  PFC				MOS:  3112

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (4) 		Conduct:  3.6 (4) 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Rifle Sharpshooter Badge.

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.3.

Chronological Listing of Significant Service Events:

010813:	Law violations adjudicated as serious offense(s) waiver was granted at the Commanding Officer, Marine Corps District level.

020429:	Company NJP for violation of UCMJ, Article 92:  At or about 0001, 020425, you were instructed to by the DNCO to turn your music down and you refused to do so 020425.
	Violation of UCMJ, Article 128: At or about 0020, 020425, you began threatening to kill the DNCO for logging your name into the logbook for the MarCorDet, FEVA 020425.
	Award:  Restriction for 7 days, extra duty for 14 days, forfeiture of $257 per month for 1 month (suspended for 6 months).  Not appealed.

020430:	Applicant acknowledged eligible but not recommended for promotion to PFC for the promotion period 1 May 2002 due to an NJP on 29 April 2002.  Applicant chose not to make a statement.

021212:	Counseling:  Advised of deficiencies in performance and conduct (Your NJP on 021212 for violation of the UCMJ, specifically; Viol of Art. 134, UCMJ: communicating a threat to another marine and Viol of Art. 128, UCMJ: assault of a LCpl by striking at him with a box cutter.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

021212:	Battalion NJP for violation of UCMJ, Article 128: Did on or about 28 Nov 02, assault LCpl G_ by striking at him with a box cutter.
Violation of UCMJ, Article 134: Did on or about 28 Nov 02, communicate a threat to LCpl G_, by saying, “If I see you trying to use this box cutter on any one of my boys, I will beat you’re a_ _” or words to that effect.
	Award:  Forfeiture of $552 per month for 2 months, reduction to E-1, correctional custody for 30 days.  Not appealed.

030109:	Applicant assigned to Liberty Risk Program from 0800, 11 January 2003 to 0800, 10 February 2003.

030213:	Battalion NJP for violation of UCMJ, Article 92: In that, having knowledge of a lawful order issued by MARCORBASEJAPANO 1600.1B, an order which it was your duty to obey, you did, at Brk. 1217 on board Camp Kinser, on or about 7 Feb 03, fail to obey the same by wrongfully consuming alcoholic beverages while under the legal drinking age of 21.
Violation of UCMJ Article 92: In that, having knowledge of a lawful order issued by MARCORBASEJAPANO 1050.3 of 22 Dec 98, an order which it was your duty to obey, you did, at Brk. 1217 on board Camp Kinser, on or about 7 Feb 03, fail to obey the same by consuming alcohol while assigned to the liberty risk program.
	Award:  Forfeiture of $575 per month for 2 months, restriction and extra duty for 45 days.  Not appealed.

030213:	Counseling:  Advised of deficiencies in performance and conduct (NJP on 13 February 2003 for Viol of Art. 92, UCMJ: Underage drinking and Viol of Art. 92, UCMJ: Liberty Risk Violation.), necessary corrective actions explained and sources of assistance provided.  Applicant advised that he is being processed for administrative separation.

030313:	Substance Abuse Rehabilitation Department, Marine Corps Base, Camp Butler: “Private V_ (Applicant) was seen in consultation on 13 March 2003 by SHC R_ L_, Substance Abuse Counselor.  The evaluation does not reveal a pattern of problematic alcohol use that is indicative of a substance abuse disorder.  Recommendations: Attend Alcohol Impact Class from 24 to 28 March 2003.”

030326:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  The factual basis for this recommendation was due to a pattern of misconduct throughout your current enlistment, reflects conduct prejudicial to good order and discipline and dishonorable failure to comply with order to wit: a.  Nonjudicial Punishments of 25 April 2002, for a violation of Article 92, UCMJ: At or about 0001, 25 Apr 02, you were instructed by the DNCO to turn your music down and you refused to do so.  Viol of Art. 128, UCMJ: At or about 0200, 25 Apr 02, you began threatening to kill the DNCO for logging your name into the logbook for the MarCorDet, FEVA. 
b.  Nonjudicial Punishment of 12 December 2002, for Violation of Art. 128, UCMJ: In that you did, on or about 28 Nov 02, assault LCpl G_ by striking him with a box cutter.  Violation of Article 134, of the UCMJ: In that you did, on or about 28 Nov 02, communicate a threat to LCpl G_, by saying, “If I see you trying to use this box cutter on anyone of my boys, I will beat you’re a_ _” or words to that effect.
c.  Nonjudicial Punishment of 13 Feb 03, for violation of Art. 92, UCMJ: In that, having knowledge of a lawful order issued by MARCORBASEJAPANO 1600.1B, an order which it was your duty to obey, you did, at Brk. 1217 on board Camp Kinser, on or about 7 Feb 03, fail to obey the same by wrongfully consuming alcoholic beverages while under the legal drinking age of 21.  Violation of Article 92, UCMJ: In that, having knowledge of a lawful order issued by MARCORBASEJAPANO 1050.3 of 22 Dec 98, an order which it was your duty to obey, you did, at Brk. 1217 on board Camp Kinser, on or about 7 Feb 03, fail to obey the same by consuming alcohol while assigned to the liberty risk program. 

030326:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

030402:	SJA review determined the case sufficient in law and fact.

030402:	GCMCA, Commander, Marine Corps Base, Camp Smedley D. Butler, informed the Commandant of the Marine Corps (MMSB) that the Applicant was directed discharged with an under other than honorable conditions reason of misconduct due to a pattern of misconduct per paragraph 6210.3 of the reference.

Service Record Book contains a partial Administrative Discharge package.  

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030415 by reason of misconduct due to a pattern of misconduct (A) with a service characterization of under other than honorable conditions.  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).  The Board presumed regularity in the conduct of governmental affairs (D).

The Applicant contends that his discharge was improper because incidents, which occurred as a civilian prior to entry, were considered in his discharge.  According to regulations, pre-service activities including misconduct for which an enlistment waiver was granted, may not be considered on the issue of characterization except in a proceeding concerning fraudulent entry into the Marine Corps.  After a thorough review of the Applicant’s service records, the Board found no evidence, which indicate that the command used any pre-service misconduct in characterizing the Applicant’s service.  In fact, the records clearly show a well-documented pattern of misconduct during this enlistment.  Further, the Applicant did not submit any credible and substantial evidence to support his claim of impropriety.  The Board therefore concluded that the Applicant’s service was properly characterized.   Relief on this basis is denied. 

The Applicant contends that an upgrade to Honorable is warranted because he presently is an outstanding citizen.  While the Board respects the Applicant’s claim that he has changed his life, it is worth reminding the Applicant that his record of service was not honorable.  The Applicant records contain:
•	Nonjudicial punishment on 20020429 for violation of UCMJ Article 92 Failure to obey order and Article 128 Assault;
•	Nonjudicial punishment on 20021212 for violation of UCMJ Article 128 Assault and Article 134 Communicating a threat;
•	Counseling entry on 20021212 for nonjudicial punishment proceedings on 20021212;
•	Nonjudicial punishment on 20030211 for violation of two specifications of UCMJ Article 92 Failure to obey order; and
•	Counseling entry on 20030213 for nonjudicial punishment proceedings on 20030213.
These negative aspects served to inform the characterization of under other than honorable conditions, which the Applicant received.  Given the Applicant’s record of service, an upgrade on the basis of being an outstanding citizen without verifiable documentation is inappropriate and is therefore denied.

The Applicant informs the Board that he has experienced difficulty in finding and maintaining gainful employment.  The Applicant is advised that the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  This issue does not serve to provide a foundation upon which the Board can grant relief.  Relief on this basis is not warranted.

Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question, but the Board found no such impropriety or inequity.   While 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 Marine Corps, the Board is authorized to consider 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.  The Applicant submitted an earning statement for March 2005 and college enrollment verification.  The Applicant is advised that his efforts need to be more encompassing to include evidence of continuing educational pursuits, verifiable employment records, and documented community service, certification of non-involvement with civil authorities.  At this time, there is not sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in his characterization of discharge.  And so, no relief is granted on this basis.

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 P1900.16F), effective 01 Sep 2001 until Present. 

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

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

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.  

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