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

FOR OFFICIAL USE ONLY

 ex-PFC, USMC
Docket No. MD05-01539

Applicant’s Request

The application for discharge review was received on 20050913.  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 did not designate a representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that he was approaching the 15-year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington D.C. area.  Subsequently, the Applicant requested a personal appearance hearing.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 20061018.  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 by reason of misconduct due to the commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issue as submitted to the Board at the time of his hearing, superseding the issue as stated on the application:

“I would like ask the review board for forgiveness of my actions nearly 16 years ago and ask for an upgrade on my character of discharge.”

Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214
Statement from Applicant, dtd September 9, 2005
Nineteen pages from Applicant’s service record

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19880204 - 19880920	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19880921		Date of Discharge:  19900928

Length of Service (years, months, days):

Active:    01  11  24
	Inactive:  None

Time Lost During This Period:

	Unauthorized absence:  14 days
	Confinement:		  102 days*

Age at Entry:  18

Years Contracted:  4

Education Level:  12				AFQT:  53

Highest Rank:  PFC				MOS:  3381

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (3)				Conduct:  4.3 (3)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Rifle Expert Badge, Sea Service Deployment Badge

*Time spent in confinement could not be verified as Lost Time.

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct-Commission of a serious offense (all other) admin discharge board required but waived, authority:  MARCORSEPMAN Par. 6210.6.

Chronological Listing of Significant Service Events:

890608:	NJP for violation of UCMJ, Article 92: Failed to obey MCO 5110.1C by driving without a valid driver license 5Jun89.
	Award:  Forfeiture of $182 per month for 1 month, restriction and extra duty for 14 days.  Not appealed.

891119:	Applicant to unauthorized absence at 0630 on 891119.

891122:	Applicant from unauthorized absence at 1050 on 891122 (3 days).  

891129:	NJP for violation of UCMJ, Article 86: UA fr 0630 891119-1050 891122.
	Award:  Correctional custody for 7 days.  

891225:	Applicant involved in criminal conduct in off-base incident as detailed in U.S. Naval Investigative Service summary report dated 900118.  

891228:	Acknowledged understanding of eligibility but not recommended for promotion to LCpl for the January promotion because of a recent NJP.  Applicant chose not to make a statement.

900118:	U.S. Naval Investigative Service summary report:  “…Subject and co-subjects [including Applicant] were identified as suspects in the separate random off-base shooting of victims with spring loaded pellet pistol.”

900319:	Applicant found fit for confinement.  Applicant to confinement, MCB, Camp Butler, Okinawa.

900629:	Applicant from confinement.

900710:	Counseling:  Advised of deficiencies in performance and conduct (Driving without U.S. forces Japan drivers license.  2nd time.  Frequent involvement with military and civilian authorities, and lack of good military judgment.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

900713:	Applicant to unauthorized absence at 0315 on 900713.

900724:	Applicant from unauthorized absence at 0730 on 900724 (11 days).  

900724:	NJP for violation of UCMJ, Article 86: UA fr 0315 900713 to 0730 900724.
	Award:  Forfeiture of $400 per month for 2 months, restriction and extra duty for 45 days.  Forfeiture $400 pay per mo for 1 month suspended for 6 months.  

900801:	Acknowledged understanding of eligibility but not recommended for promotion to LCpl for the August promotion because of recent NJP.

900821:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to a civilian conviction.  The specific basis for the recommendation was the Applicant’s three nonjudicial punishments and a conviction by foreign civilian authorities.  Applicant informed least favorable character of service possible is under other than honorable conditions.

900821:	Applicant advised of rights and having consulted with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

900821:	Commanding Officer, Headquarters Battalion, 3d Marine Division, recommended Applicant’s discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to a civilian conviction.  The factual basis for this recommendation was his failure to conform to the standards of the Marine Corps.  He has received three NJP’s and a conviction by foreign civilian authorities.  He has been counseled concerning his deficiencies as evidenced by his service record.  His response has been further violations of the UCMJ.  By his actions and inability to respond to counseling, he has demonstrated that he has no potential for further honorable service.  
 
900823:	SJA review determined the case sufficient in law and fact.

900828:	GCMCA, Commanding General, 3d Marine Division (-) (Rein), FMF, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19900928 by reason of misconduct due to the commission of a serious offense (A and B) with a service characterization of under other than honorable conditions.  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).  The Board presumed regularity in the conduct of governmental affairs (E).

During the review of the Applicant’s records, the Board discovered that the Applicant’s administrative separation was not in full compliance with applicable regulations.  For separations by reason of misconduct due to commission of a serious offense, regulations require that the member be notified of the intention to process the member for separation by reason of misconduct due to commission of a serious offense.  The Applicant was notified on 19900821 of his Commanding Officer’s intention to recommend his separation by reason of misconduct due to civilian conviction and by reason of misconduct due to pattern of misconduct.  On 19900821, the Commanding Officer recommended the Applicant’s discharge by reason of misconduct due to pattern of misconduct and misconduct due to civilian conviction.  On 19900828, the General Courts-Martial Convening Authority directed the Applicant’s discharge by reason of misconduct due to the commission of a serious offense.  However, after considering the circumstances unique to the case, the Board determined that the procedural error was not prejudicial to the Applicant and therefore affords him no relief.  There is little doubt to the NDRB that the discharge would have remained the same if the error had not been made and thus relief based upon this error is not warranted.  

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 a retention warning and three nonjudicial punishment proceedings for violations of Articles 86 and 92 of the UCMJ.  The evidence of record and the Applicant’s testimony also reveal the Applicant committed assault consummated by battery when he shot Japanese nationals with a pellet pistol, which ultimately resulted in the Applicant’s conviction by foreign authorities.  The Applicant’s off-base violations are equivalent to a violation of Article 128, assault, of the UCMJ.  Violations of Articles 92 and 128 of the UCMJ are serious offenses for which a punitive discharge is authorized if adjudged as part of the sentence upon conviction at special or general court-martial.  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 Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant’s testimony revealed that he seeks a change of character of service based on post-service equity.  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 Naval service.  The NDRB 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.  The Applicant’s testimony revealed that, after his discharge, he was convicted of stealing a motorcycle and sentenced to probation.  The testimony also showed that, after violating the terms of his probation, the Applicant was sentenced to house arrest.  Further testimony revealed that the Applicant was subsequently incarcerated for violations of the terms of his house arrest.  The Applicant testified that, subsequent to his incarceration, he has been steadily employed, engaged in volunteer efforts and is actively pursuing his college education.  Though the Board found the Applicant’s recent efforts notable, the Board determined that the discharge was appropriate and that the Applicant’s post-service conduct was not sufficient to mitigate the conduct which precipitated the discharge.  Relief denied.

The following is provided for the edification of the Applicant.  The NDRB has no authority to provided additional review of this case since Applicant’s discharge occurred more than 15 years ago.  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210, Misconduct 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 92, failure to obey order/regulation or Article 128, assault.
 
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