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

 ex-Pvt, USMC
Docket No. MD00-00114

Applicant’s Request

The application for discharge review, received 991027, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant listed the American Legion as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000622.  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. 6210.2.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  (EQUITY ISSUE) His violations of the UCMJ notwithstanding, this former member opines that his otherwise creditable service period is sufficient to warrant separation under honorable conditions.

2.  (EQUITY ISSUE) This former member further request that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.

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)		941206 - 941228	COG

Period of Service Under Review:

Date of Enlistment:  941229		Date of Discharge:  970113

Length of Service (years, months, days):

	Active:    02  00  15
	Inactive:  None

Age at Entry:  22			Years Contracted:  4

Education Level:  12			AFQT:  33

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.7*			Conduct:  3.2*

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM 

Days of Unauthorized Absence:  31 (not verified) 

*Extracted from Action Brief from Legal Services Center.

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.2.

Chronological Listing of Significant Service Events:

960103:	NJP for violation of UCMJ, Article 86 (2 specs):
Specification 1: Unauthorized absence 0800-1130, 19Dec95. 
Specification 2: Unauthorized absence 1230, 21Dec95 until 2030, 28Dec95 (8 days/surrendered).
Awarded forfeiture of $223.00 per month for 1 month, restriction for 14 days.  Not appealed.

960129:	NJP for violation of UCMJ, Article 86:
Specification: Unauthorized absence 1800-1935, 4Jan96.
Violation of UCMJ, Article 92:
Specification: Disobey a lawful order on 1100, 14Jan96, to wit: failed to show up for restriction sign-in.
Violation of UCMJ, Article 134:
Specification: Break restriction on 2000, 8Jan96.
Awarded forfeiture of $223.00 per month for 1 month, restriction and extra duties for 14 days.  Forfeiture suspended for 6 months.  Not appealed.

960301:	NJP for violation of UCMJ, Article 92 (2 specs):
Specification 1: Disobey lawful order, to wit: wrongfully going to spouses home on 16Feb96.
Specification 2: Disobey lawful order, to wit: wrongfully going to spouses home. Awarded forfeiture of $427.00 per month for 2 months, restriction and extra duties for 45 days, reduction to Pvt.  Forfeiture of $427.00 for 1 month suspended for 6 months.  Not appealed.

960305:	Counseled for deficiencies in performance and conduct.  [Loss of my identification card.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960306:	Vacate forfeiture awarded at CO's NJP dated 29Jan96.

960320:	Counseled for deficiencies in performance and conduct.  [Frequent violations of the UCMJ.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960522:	Vacate forfeiture awarded at CO's NJP dated 1Mar96. 

960522:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 92.
	Specification: Disobey a lawful written order.
	Charge II: violation of the UCMJ, Article 134:
	Specification: Breaking restriction.
	Finding:  to Charge I and II and the specification thereunder, guilty.
	Sentence:  Forfeiture of $582.00, confinement for 30 days.  Forfeiture suspended for 6 months.
	CA action 960522: Sentence approved and ordered executed.

960522:	Applicant to confinement.

960615:	Applicant from confinement.

960621:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.

960621:  	Applicant advised of his rights and having consulted 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.

960621:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.  The factual basis for this recommendation was numerous violations of the UCMJ, to include negligent loss of government property, unauthorized absence (three occasions), breaking restriction (two occasions), and failing to obey a lawful written order (four occasions). 

9607XX:	SJA reviewed and found sufficient in law and fact.

960723:	GCMCA [Commanding General, Marine Corps Base Hawaii] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.

961210:	CO to CG, Marine Corps Base Hawaii: Applicant was to be administratively discharged within 10 working days.  However, CID informed this command of possible criminal misconduct of applicant (fraudulent use of a stolen ATM card amounting to a total of $2,960.00).  On 23 September 1996, applicant was referred to a special courts-martial for Articles 81, and 121 x 4.  On 28 October 1996, a pretrial agreement was made and applicant's special courts-martial was referred to a summary courts-martial.  On 14 November 1996, applicant went unauthorized absence until 1 December 1996.  Applicant was found guilty of all charges and received forfeitures $580.00 pay for one month and 30 days confinement.
	It is requested that applicant be allowed to execute the reference after serving the sentence adjudged on 2 December 1996.  Applicant is scheduled to be released from the brig on 26 December 1996.

961230:	CG to CMC: The reference directed administrative separation with an under other than honorable conditions discharge by reason of misconduct due to minor disciplinary infractions.  Additionally, it directed that within 10 working days, the applicant be transferred to Marine Corps Base, Camp Pendleton, CA for discharge.
	In consideration of the basis correspondence, the reference is hereby modified to reflect that the respondent will be transferred to Marine Corps Base, Camp Pendleton, CA, no later than 10 January 1997, for discharge.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 970113 under other than honorable conditions for misconduct due to minor disciplinary infractions (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).

The applicant’s representative submitted the following as issue 1, His violations of the UCMJ not withstanding, this former member opines that his otherwise creditable service period is sufficient to warrant separation under honorable conditions.  The Board disagrees.  Within a 2 year period, the applicant had 3 NJP’s and one Summary Court-Martial.  Clearly, this is not credible service and warrants nothing more that the discharge issued.  Relief denied.

 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 post-service conduct, in assessing the merits of his application.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (B, Part IV).  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, an error or injustice 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 is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is highly recommended.

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 95until 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 [ e.g., Article 86, unauthorized absence for more than 30 days].

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