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

 ex-Pvt, USMC
Docket No. MD01-01121

Applicant’s Request

The application for discharge review, received 010821, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested 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 020417.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  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. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

Prior to the documentary discharge review, the applicant introduced no issues as block 8 on the DD Form 293 is blank. 

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		930924 - 940118	COG

Period of Service Under Review:

Date of Enlistment:  940119		Date of Discharge:  960206

Length of Service (years, months, days):

	Active:    02  01  18
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  11			AFQT:  49

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.8 (6)			Conduct:  3.8 (6)

Military Decorations:  Rifle expert badge

Unit/Campaign/Service Awards:  NDSM, Letter of Appreciation, MM

Days of Unauthorized Absence:  None

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:

941031:	Counseled for deficiencies in performance and conduct.  [Repeated willful and wrongful failure to follow lawful orders and directions from your immediate seniors, repeated willful and wrongful failure to be at your appointed place of duty, unwillingness to accept responsibility for the above deficiencies, immature and inappropriate approach to solving personal problems, lack of integrity, and self-centered attitude.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950317:	Counseled for deficiencies in performance and conduct.  [Unauthorized absence from appointed place of duty, SOI Legal Officer, dereliction of duty, morning open up for SOI Legal, and willful disobedience of NCO.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950705:	Applicant arrested.  Charged with PC 415(1), challenging or fighting in a public place and PC 417(a)(1), exhibiting a deadly weapon, other than a fire arm, in a rude or threatening manner.

950925:	Applicant convicted in civil court of reduced to an infraction.
	Sentence: Fined $50.00, mandatory anger management class, ordered not to violate same or similar offense, not to have any contact with victim or victims family.

951020:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 86:
	Specification: Fail to go at time prescribed to Orthopedic Dept at 1400, 22May95.
	Charge II: violation of the UCMJ, Article 92:
	Specification: Fail to obey the same by wrongfully borrowing a shirt and a pair of shoes from PFC, a SOI student on 1May95.
	Charge III: violation of the UCMJ, Article 121:
	Specification: Wrongfully appropriate one short sleeve shirt, value of $25.00, a pair of Nike shoes, value of $50.00 between 1Apr95 and 23May95.
	Charge IV: violation of the UCMJ, Article 134:
	Specification: With intent to defraud, falsely pretend to Navy Exchange Service Command that SSgt did sign the said LCpl Navy Exchange Service Command Card app and by means thereof did wrongfully obtain from Navy Exchange Service command services of a value of $750.00, to wit: a credit account with the Navy Exchange Service Command.
	Finding:  to Charge I-IV and the specification thereunder, guilty.
	Sentence: Forfeiture of $569.00, reduced to Pvt.
	CA action 951101:  The finding of guilty on Charge I and specification thereunder is disapproved.  Sentence approved and ordered executed.

951227:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

951227:	Applicant advised of his rights and having elected not to consult 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.

951227:	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 applicant's recurring incidents of failing to go to his appointed place of duty, fraternizing with students here at the School of Infantry, and falsifying documents.  His intolerable actions over the course of the past twelve months have resulted in two page 11 counselings and a summary court-martial.  By his persistent flouting of military authority, rules, and regulations, applicant has demonstrated that he is incapable of honorable military service in the Marine Corps.

960117:	Assistant Chief of Staff, SJA review determined the case sufficient in law and fact.

960129:	GCMCA [Commanding General, Marine Corps Base, Camp Pendleton] 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 960206 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).

Issue 1.  The applicant introduced no decisional issues for consideration by the Board.

A characterization of service of under other than honorable conditions 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 award of a summary court-martial on one occasion and adverse counseling entries that could have resulted in non-judicial punishment on other occasions.  The applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful disobedience of the orders and directives which regulate good order and discipline in naval service, and falls short of that required for an honorable characterization of service.  An upgrade would be inappropriate.  Relief denied.

The applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice 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.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct.  The applicant did not provide sufficient documentation to warrant an upgrade to his discharge.  He 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.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 Aug 95 until Present. 

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; Article 92, failure to obey regulations; Article 121, larceny; Article 134, intent to defraud.

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

E.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 “afls10.jag.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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023