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

 ex-LCpl, USMC
Docket No. MD04-00631

Applicant’s Request

The application for discharge review was received on 20030303.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing before the board in the Washington National Capital Region.  The Applicant did not list any representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representation by the Disabled American Veterans.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 20041014.  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 4 to 1 that the character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct-Pattern of misconduct (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

1.  “I will submit documentation prior to deliberation”
Issues submitted by Applicant’s counsel/representative (DISABLED AMERICAN VETERANS:

1.  “Honorable based on equity and good conscience.”

Documentation

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

Character reference letter from J. D_ R_
Colorado Motor Vehicle Record
Denver Career College Unofficial Transcript
Court records (5 pages)
Character reference letter from R_ C_
Character reference letter from B_ M_
Character reference letter from T_ L_
Cover page
Character reference letter from T_ H_
Letter from Applicant
Denver Career College Report Card
Informational Interview Transcript
Cover letter from Applicant
Applicant’s resume
Applicant’s references
Thank you letter 
Substitute teacher certificate
Certificate of Achievement
Perfect Attendance Award
Certificate of Acceptance
List of classes
Certificate of completion
List of classes
Certificate of completion
Team photographs (4 pages)

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		890717 - 890925	COG

Period of Service Under Review:

Date of Enlistment:  890926		Date of Discharge:  940401

Length of Service (years, months, days):

	Active:    04  06  06
	Inactive:  None

Age at Entry:  18			Years Contracted:  6

Education Level:  12			AFQT:  63

Highest Rank:  Cpl			MOS:  1171

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (8)			Conduct:  4.4 (8)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, Letter of Appreciation, SSDR with 1 Star, SASM with 2 Stars, KLM, MUC, NUC, GCM, AFEM, JMUA

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct-Pattern of misconduct (administrative discharge board required but waived), authority:  MARCORSEPMAN Par. 6210.3.

Chronological Listing of Significant Service Events:

900228:	Counseled for deficiencies in performance and conduct.  [Sleeping during class.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

900314:	NJP for violation of UCMJ, Article 91 (2 specs):
Specification 1: Disobey a direct order from SSgt by not staying awake during class on 1630, 900302.
Specification 2: Disobey a lawful order from SSgt by not staying awake during class on 1515, 900307.
Awarded forfeiture of $405.00 per month for 1 month, correctional custody for 30 days without suspension from duty.  Not appealed.

930920:	NJP for violation of UCMJ, Article 91 (2 specs):
Specification 1: Willfully disobey the order of a Sgt of the Marine Corps to push the soundcraft.
Specification 2: Conduct himself with insubordination towards a noncommissioned officer, to wit: the block NCO and his coach.
Awarded forfeiture of $262.00 per month for 1 month, restriction and extra duties for 14 days.  Forfeiture suspended for 6 months.  Not appealed.

931012:	Counseled for deficiencies in performance and conduct.  [You have set a pattern of misconduct.  Specifically, that you have received two NJP’s thus far on your first enlistment.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

931221:	Counseled for deficiencies in performance and conduct.  [Poor performance.  Specifically your unprofessional conduct and attitude in making derogatory comments about the Marine Corps and your superiors in the presence of recruits.  You also have been repeatedly counseled by your SNCOIC concerning your shoddy work, unreliability in carrying out assigned tasks and your inability to properly supervise recruit working parties as your primary duty.  Your performance is not up to what is expected of a Marine NCO of your experience and grade.  Your actions and speech are disruptive and counter productive to the good order and discipline of this unit.  You are reminded that as a Marine NCO you are expected to act accordingly and carry out your duties in a professional manner.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

931221:	Counseled for deficiencies in performance and conduct.  [Alleged spousal abuse.  Specifically your wife called and visited the Company Commander to report your violent behavior in that you tore up your apartment and shoved your wife in a fit of rage.  You have a history of documented incidents of this nature with Family Advocacy.  Marine Corps policy does not condone this behavior and abuse.  You are further warned that these actions are punishable under the UCMJ and administrative separation can occur if you fail to take corrective action and stop this abusive behavior.  You are further directed to remain living in the barracks and continue to attend the Mens’ Group Orientation as directed by the Company Commander on 930825.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940121:	Counseled for deficiencies in performance and conduct.  [Work performance.]

940202:	Vacate suspended forfeiture awarded at CO’s NJP dated 930920.

940204:	NJP for violation of UCMJ, Article 86 (2 specs):
Specification 1: Absent from appointed place of duty on 1745-2000, 940112.
Specification 2: Absent from appointed place of duty on 0500-0515, 940117.
Awarded forfeiture of $500.00 per month for 2 months, restriction and extra duties for 45 days, reduction to E-3.  Forfeiture suspended for 6 months.  Not appealed.

940217:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a frequent involvement with military authorities.

940217:	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.

940222:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a frequent involvement with military authorities.  The factual basis for this recommendation was your numerous counseling entries dated 931221, 931012, 901028 and your recent nonjudicial punishment imposed on 940204.  

940321:	SJA review determined the case sufficient in law and fact.

940324:	GCMCA [Depot Commander, MCRD/WRR San Diego, CA] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

960122:	NDRB documentary record review Docket Number MD96-00083 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19940401 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 contends that he deserves an upgrades based on equity and “good conscience”.  When the service of a member of the U.S. Navy 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 multiple counselings, three nonjudicial punishment proceedings for violations of Articles 86 and 91of the UCMJ, and the vacation of suspended punishment due to continued misconduct.  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. Navy and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

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.  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.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that his discharge was appropriate and that his evidence of post-service conduct was found not to mitigate the conduct for which he was discharged.  Relief denied.

The following if provided for the edification of the Applicant.  Because the Applicant has been afforded both a documentary review and a hearing review, the NDRB has no authority to provided additional review of this case.  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, of 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 91, willfully disobeying the lawful order of a noncommissioned officer..

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 “afls14.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