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

ex-PVT, USMC
Docket No. MD00-00769

Applicant’s Request

The application for discharge review, received 000525, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested a personal appearance hearing discharge review before the Board in the Washington National Capital Region.  The applicant did not list any representative on the DD Form 293.

Decision

A personal appearance hearing was conducted in Washington, D.C. on 010321.  After a review of the applicant’s service record and other evidence presented to the NDRB, in conjunction with consideration of the factors listed in paragraph 9.3 of SECNAVINST 5420.174C, it was determined that relief is warranted under equitable grounds even though the discharge was determined to have been otherwise equitable and proper at the time of issuance.  The Board’s vote was four to one to upgrade the discharge.  The discharge shall change to:  UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct-Pattern of misconduct (with administrative discharge board), authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  Look at information and review based on post service conduct.

Documentation

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

Letter from Applicant (4pgs)
Reference Letters (3)
Copies of DD Form 214 (2)

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		870828 - 880726	COG

Period of Service Under Review:

Date of Enlistment:  880727		Date of Discharge:  911101

Length of Service (years, months, days):

	Active:  03  03  04
	Inactive:  None

Age at Entry:  18			Years Contracted:  6 

Education Level:  12			AFQT:  55

Highest Rank:  Cpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (11)		Conduct:  3.9(11)

Military Decorations:  None

Unit/Campaign/Service Awards:  MUC, NDSM 

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 (with administrative discharge board), authority:  MARCORSEPMAN Par. 6210.3.

Chronological Listing of Significant Service Events:

910328:	NJP for violation of UCMJ, Article 121: Wrongfully withdrew $284.00 from another marine's checking account; violation of UCMJ, Article 134: Borrowing money from a subordinate.
Awarded forfeiture of $463.00 per month for 1 month, restriction for 30 days, reduction to LCpl.  All fines suspended for 6 months.  Not appealed.

910329:	Counseled for deficiencies in performance and conduct.  [Page 11 counseling dated 910329 for uttering checks without sufficient funds and NJP on 910328 for violation of Article 121 and 134, UCMJ] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

910625:	Counseled concerning the loss of ID Card/Meal Card.
	
910811:	Fine imposed and suspended at NJP on 910328 vacated.

910812:	NJP for violation of UCMJ, Article 91: Willfully disobeyed a lawful order from SNCO; violation of UCMJ Article 134: Writing three worthless checks.
	Award:  Forfeiture of $250.00 per month for 2 months, restriction and extra duty for 45 days, reduction to PFC. All fines suspended for 6 months.  Appealed (910812).  Appeal denied (910825) [Date estimated].

910904:	Civil Arrest for warrants based on bad checks.  Released and court date set.

910913 :	Fines imposed and suspended at NJP of 910812 vacated.
 
910913:	NJP for violation of UCMJ, Article 134: Writing four worthless checks.  Restriction for 60 days and reduction to Pvt.  No indication of appeal in the record.

910914:	Two additionally civil warrants for arrest made based on additional worthless checks.  Checks paid not arrested.

910920:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

910923:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

910924:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to a pattern of misconduct, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

910930:	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 on 15 February 1991, you were counseled under paragraph 6105 of the reference for writing and uttering checks without having sufficient funds; on 29 March 1991, you received NJP for violation of Article 121, UMCJ, wrongfully withdrawing $284.00 from a fellow Marine's checking account without permission; violation of Article 134, UCMJ, borrowing money from a subordinate, and you were subsequently counseled under paragraph 6105 of the reference; on 12 August 1991 you received NJP for violation of Article 91, UCMJ, willfully disobeyed a lawful order from a Staff Noncommissioned Officer; violation of Article 134, UCMJ, writing 3 checks without having sufficient funds.  On 16 September 1991 you again received NJP for violation of Article 134, UCMJ, writing 4 checks without having sufficient funds.  

911025:	SJA review determined the case sufficient in law and fact. 

911025:	GCMCA [Commander] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

950221:	NDRB documentary record review Docket Number MD94-00919 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 911101 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 review of the applicant’s service record and other evidence presented to the NDRB at the personal appearance hearing, in conjunction with consideration of the factors listed in paragraph 9.3 of reference (E), it was determined that relief is warranted under equitable grounds even though the discharge was determined to have been otherwise equitable and proper at the time of issuance.

The applicant requested relief based on his post service conduct.  The board found the applicant’s post service conduct was significant enough to warrant relief.  The board granted relief based on the applicant’s positive contributions to the community and his outstanding post service conduct as authorized by ref (E).

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 91,121,and 134.

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