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Docket No. MD00-00884

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

 ex-PVT, USMC
Docket No. MD00-00884

Applicant’s Request

The application for discharge review, received 000629, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant listed AMERICAN LEGION as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010116.  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 – Pattern of misconduct (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  (Equity Issue) This former member avers that family problems, the abuse of his mother by her boyfriend, directly contributed to his UA violations and sufficiently mitigates his misconduct of record to warrant recharacterization of service.

2.  (Equity Issue)  As the documentary evidence of record support, this former member further opines that his post-service conduct has been sufficiently creditable to warrant the Board's clemency relief as authorized under provision of SECNAVINST 5420.174C, enclosure (1), paragraph 9.3.

Documentation

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

Copy of DD Form 214
Letter from applicant (4 pgs)
Character Reference Letters (11)
Letter of Recognition
Employment Reference Letter

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		870804 - 880706	COG

Period of Service Under Review:

Date of Enlistment:  880707		Date of Discharge:  891121

Length of Service (years, months, days):

	Active:  01  04  15
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  43

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.75 (4)		Conduct:  3.3(4)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Expert Badge 

Days of Unauthorized Absence:  52 

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:

890810:	Counseled for deficiencies in performance and conduct.  [Unauthorized absence and failing to obey an order from a noncommissioned officer] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

890814:	Summary Court Martial: Charge I violation of UCMJ, Article 86 (2 Specs), Spec 1: UA (AWOL) 0001, 890705 to 2210, 890803 (29days/S), Spec 2: UA (AWOL) from appointed place of duty 0100, 890809.  Charge II violation of UCMJ Article 91: Failure to obey a lawful order from a noncommissioned officer.
	Sentence:  Confinement at hard labor for 1 month, reduction to E-1.
	CA (890814) Approved and ordered executed.

891020:	Summary Court Martial: Charge I violation of UCMJ, Article 86: UA (AWOL) 0400, 890908 to 2225, 891004 (27days/S).
	Sentence:  Confinement at hard labor for 1month, forfeiture of $466.00 pay per month for 1 month.
	CA (891020) Approved and ordered executed.

891020:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

891020:  	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.

891025:	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 your Pattern of Misconduct for two violation of Articles 86 of the UCMJ in which you received two Summary Court-Martials.  891114:	SJA review determined the case sufficient in law and fact.

891114:	GCMCA [Commanding General] 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 891121 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).

In the applicant’s issue 1, the Board disagrees with the applicant’s position.  Relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts.  The applicant's case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  The NDRB found the applicant’s service records devoid of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded.  

While the applicant’s letter describes a difficult environment vis-à-vis his mother, the Board had no empirical evidence to substantiate the applicant’s claims.  Further, there is no evidence the applicant took advantage of the many options for relief offered by the chain of command.  There is no evidence the applicant informed his chaplain or commanding officer of his mother’s situation, nor requested a humanitarian transfer, discharge for humanitarian reasons or military dependency for his mother.

In the applicant’s second issue, the following is provided for the applicant’s edification.  The NDRB is authorized to consider 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.  However, there is no law or regulation that 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 be found to have existed during the period of enlistment in question.  No such error or injustice is evident in the applicant’s service record.   In determining whether a case merits a change based on post-service conduct, the NDRB considers the length of time since discharge, the applicant's record of community service, employment, conduct, educational achievements, and family relationships. While the applicant's efforts are applauded and even noteworthy, documentation of his claims need to be more encompassing than those provided.  The applicant should have produced evidence of educational pursuits, a verifiable employment record, documentation of community service, and proof of his custody of his nephew in order for consideration for clemency based on post-service conduct.  At this time the applicant has not provided sufficient documentation of good character and conduct.  Therefore no relief will be granted.  

The applicant is reminded that he remains eligible for a personal appearance hearing provided that an application is received within 15 years from the date of discharge.
Representation at a personal appearance hearing is strongly recommended.  As the applicant is approaching the end of his eligibility, the Board strongly encourages him to promptly assemble the documentation discussed above and appear before the Board in person to petition for relief.

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.  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.  

C.  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.

D.  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

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
INDEX:  A6750/A9307/A9229/A9221