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

Ex-PFC, USMC
Docket No. MD04-00485

Applicant’s Request

The application for discharge review was received on 20040127.  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.  Subsequent to the application, the applicant obtained representation by the Veterans of Foreign Wars.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041222.  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. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I feel that my discharge was inequitable because the Marine Corps did not focus on the fact that I had completed (2) full 4 year contracts before this matter happened.” 

Additional issues submitted by Applicant’s counsel/representative (VETERANS OF FOREIGN WARS:

2.  “Applicant indicated the above requested that Veterans of Foreign Wars act as counsel concerning his application.  His records were reviewed on November 16, 2004 and the following comments are hereby submitted.

Equity Issue; Based on our review of evidentiary record and on behalf of this former member, we request that the Board consider provision of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to the merits of this application.

In accordance with 32 CFR, section 724.166, and SECNAVINST 5420.174C, enclosure (1), paragraph 1.16, the Veterans of Foreign Wars US submits to the Naval Discharge Review Board (NDRB or Board) the above issue and following statement in supplemental to the Applicant’s petition.

Review of all available records reflect that this former member received the Navy and Marine Corps Achievement Medal, Humanitarian Medal, Sea Service Deployment Ribbon w3* and an Armed Forces Expeditionary Medal.

His due process included NJP’s which found that he committed a pattern of misconduct as authorized by Marine Corps Separation Manual par 6210.3.  Essentially, as noted on DD Form 293, this Applicant is requesting that his UOTHC discharge is too harsh in accordance with Marine Corps regulations.

We refer this case to the Board for their careful and compassionate consideration and request the Applicant’s discharge be reviewed for an upgrade to General Under Honorable.” 

Documentation

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

Character Reference Letter from D___ W___, dated December 14, 2003 (2 pages)
Character Reference Letter from E___ F___, P&D Service Manager, FedEx (Not 	Signed)
Character Reference Letter from S___ K___, Esq Law Officer of J___ M___, dated 	December 22, 2003
Copies of Applicant’s DD Form 214 (2) 

PART II - SUMMARY OF SERVICE

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

Inactive: USMCR(J)		930304 - 930311	COG
	Active:   USMC		930312 - 970131	HON
	Active:   USMC		970201 - 001127	HON

Period of Service Under Review:

Date of Enlistment:  001128		Date of Discharge:  020719

Length of Service (years, months, days):

	Active:    01  07  20
	Inactive:  None

Age at Entry:  30			Years Contracted:  4 

Education Level:  12			AFQT:  36

Highest Rank:  SGT			MOS:  0411

Final Enlisted Performance Evaluation Averages (number of marks): All enlisted performance reports were available to the Board for review.

Military Decorations:  None

Unit/Campaign/Service Awards:  NMCAM(w1*), NDSM(w1*), HSM, SSDR(3), AFEM(w1*), (MPS HAGUE)(USS TARAWA), GCM, LOA(2), COC, MUC, REB, PEB

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:

001128:	Reenlisted at CE 13TH MEU SOC for 4 years.

011019:	NJP for violation of UCMJ, Article 134: On or about August 2001, wrongfully have sexual intercourse with a woman not his wife.
Awarded forfeiture of $872.00 pay per month for 1 month (suspended for 6 months), and a letter of reprimand.  Not appealed.

011114:	NJP for violation of UCMJ, Article 111: On or about 011114 operate a motor vehicle while under the influence of alcohol.
Awarded forfeiture of $876.00 pay per month for 1 month, restriction for 60 days, reduction to E-4.  Not appealed.

020530:	Counseled for deficiencies in performance and conduct.  [Your documented pattern of misconduct]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020530:	NJP for violation of UCMJ, Article 92: On or about 1800, 020515, failure to obey lawful order; violation of UCMJ, Article 107: On or abut 1800, 020515, lied to Superior Commissioned Officer & SNCO. 
Awarded forfeiture of $692.00 pay per month for 1 month, restriction and extra duties for 45 days, reduction to E-3 (suspended for 6 months).  Not appealed.

020613:	Punishment of reduction to LCpl from your [Applicant]  NJP on 020530 vacated due to your violation of UCMJ Article 92 (x2).
 
020614:	NJP for violation of UCMJ, Article 92 (2 specs):
	Specification 1:  In that Lance Corporal K_, having knowledge of a lawful order issued by LtCol O_, to wit: to go to place of billeting, mess, duty, worship and most direct route to and from without suspension from duty, an order it was to obey, did aboard Camp Pendleton, CA, on or about 1300, 31 May 2002, fail to obey the same by wrongfully going to the Las Pulgas PX.
	Specification 2:  In that Lance Corporal K_, having knowledge of a lawful written order (BnO 1700.2E), to wit: Personnel on either battery or battalion restriction are strictly prohibited from consuming alcoholic beverages during their entire restriction period, an order which it was his duty to obey, did aboard Camp Pendleton, CA, on or about 1300, 31 May 2002, fail to obey the same, by wrongfully consuming alcohol. 
	Awarded:  Forfeiture of 1 months pay for 2 months.  Total forfeiture of $1238.00.  Reduction to (E-2) Private First Class.  Restriction to the limits of place of mess, duty, billet, worship, and most direct route to and from without suspension from duty, for a period of 45 days and extra duties for 45 days, to run concurrently.  Not appealed.

020614:	Counseled for deficiencies in performance and conduct.  [Your documented pattern of misconduct]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020614:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

020614:	Applicant advised of 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.

020625:	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 PFC K___’s repeated violation of the UCMJ, despite numerous opportunities to correct his deficiencies.  During his enlistment, PFC K___ has consistently displayed a blatant disregard for orders and regulation.  During his enlistment, he has received battalion level non-judicial punishment four times; once for Article 134 (Adultery), once for Article 111 (Driving his POV while intoxicated), and twice for Article 92 (violating the parameters of his restriction).  PFC K___ has demonstrated a blatant disregard for our Corps values and the good order and discipline of our unit.  I believe it is in the best interest of the Marine Corps to expeditiously process him out of the Marine Corps at this time.  

020715:	SJA review determined the case sufficient in law and fact.

020716:	GCMCA , Commanding General, 1st Marine Division, 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 20020719 under other than honorable conditions for misconduct due to a pattern of misconduct (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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).

Issues 1. and 2.  The Applicant contends that his discharge was inequitable because he had “completed (2) full 4 year contracts before this matter happened.”  Further, the applicant’s representative submitted the following as issue 2: “(EQUITY ISSUE) This former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to the merits of the this application.”  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 total military record.  The Applicant’s service during the enlistment in question was marred by 4 nonjudicial punishment proceedings for violations of Articles 92, 107, 111, and 134 of the UCMJ.  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 NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, 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, is considered.  The applicant provided one letter of recommendation from his employer and two letters of character reference as documentation of his post-service.  The applicant's efforts need to be more encompassing than those provided.  For example, the applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities, in order for consideration for clemency based on post-service conduct.  At this time, the applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in his characterization of discharge.  Therefore, relief is not warranted.
 
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 II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

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