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Docket No. MD00-00889

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

ex-Pvt, USMC
Docket No. MD00-00889

Applicant’s Request

The application for discharge review, received 000705, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010329.  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.  I would first like to thank you for reviewing my discharge.  Also consider the fact I had served for almost 4yrs and was 2 months away from EAS and regret what had happened, and think I should be given a fair chance to show my pride in serving my country with an honorable discharge.  Since detaching from the marines I began to realize how important the discharge is to me and my future.  I am very disappointed in myself and wasn't thinking ahead and now I'm asking for your consideration for my future, I am attending classes and want to become a fireman, but because of my discharge I was unable to benefit from the G.I. Bill, also was denied unemployment after discharge because of my discharge, my pattern of misconduct prior to release was the reason, but not harsh, I never hurt anyone or did drugs and those people received the same type of discharge, I think I deserve a chance once again to show my pride with an honorable discharge.  Thank you for your time and patience, hope to hear good news soon so please send me a copy of the judgement to the address on front I also live by the motto: once a marine always a marine ooh rah.

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		921029 - 930621	COG

Period of Service Under Review:

Date of Enlistment:  930622		Date of Discharge:  970425

Length of Service (years, months, days):

	Active:  03  10  04
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  64

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.56 (10)		Conduct:  3.4(10)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Marksman Badge, NDSM, SSDR 

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. 6210.2.

Chronological Listing of Significant Service Events:

940706:	NJP for violation of UCMJ, Article 86: Did on about 0704 940622 without authority, absent himself from 2ndBn, 12thMar, MCBH and did remain absent until on or about 0642, 940628.
	Award:  Restriction and extra duty for 14 days.  Not appealed.

960119:	Counseled for deficiencies in performance and conduct.  [NJP resulting from a lack of maturity judgement, dedication and commitment.  Your past determination to do your own thing in conflict with Marine Corps goals and mission.  You are an integral part of this team and must act like it] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960122:	NJP for violation of UCMJ, Article 86: (1/12 Motorpool) was UA from appointed place of duty, to wit: Inspection, and did remain absent until on or about 0655, 960108, violation of UCMJ Article 91: On or about 1610, 960109 (1/12 Motorpool), was insubordinate in conduct toward a Staff Non-commissioned Officer, violation of UCMJ Article 92: On or about 0655, 960108, (1/12 Motorpool), wrongfully disobeyed a lawful order issued by, SSgt R_____, to wit: Get a haircut and report back to SSgt R____.
	Award:  Forfeiture of $249.00 per month for 1 month (suspended), restriction and extra duty for 7 days (suspended for 6 months).  Not appealed.

961106:	Counseled for deficiencies in performance and conduct.  [Concerning you not being worldwide deployable due to your wife's present medical conditions, which requires your frequent care as stated by D____ R. S____, Civ, MD dtd 17 September 1996.  You are hereby counseled that Marines are Marines 24 hours a day, 7 days a week.  Specific duties assignments or circumstances, not to mention the fundamental mission of the Marine Corps, requires all Marines, regardless of their marital status, to be responsive to command and Marine Corps needs].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

961220:	Counseled for deficiencies in performance and conduct.  [Unauthorized absence, violation of Art 86, UCMJ, resulting in Btry NJP held on 961220] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

961220:	NJP for violation of UCMJ, Article 86: On or about 0600, 961217 was UA from his appointed place of duty, to wit: formation, and did so remain absent until on or about 0730, 961217 when arrived at the Rifle Range.
	Award:  Forfeiture of $260.00 per month for 1 month, restriction and extra duty for 14 days.  Not appealed.

970206:	Counseled for deficiencies in performance and conduct.  [Driving under the influence and unauthorized absence.  Violation of Article 111, 86 UCMJ.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970206:	NJP for violation of UCMJ, Article 111: On or about 970201, (Island of Oahu) wrongfully operate a motor vehicle while intoxicated, to wit: BAC .152%, violation of UCMJ Article 86: On or about 0530, 970204 was UA from his appointed place of duty, to wit: Rifle Range, and did remain absent until on or about 1100, 970204.
	Award:  Forfeiture of $505.00 per month for 2 months (forfeiture of $500.00 pay per month suspended for 6 months), extra duty for 45 days (suspended), reduction to E-2.  Not appealed.

970212:	Counseled for deficiencies in performance and conduct.  [Your disobedience of a lawful order and unauthorized absence].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970212:	NJP imposed and suspended on 970206 for a period of 6 months is hereby vacated and the punishment is ordered executed.

970212:	NJP for violation of UCMJ, Article 86: UA on or about 0600, 970210 from his appointed place of duty, to wit: work, violation of UCMJ Article 92: On or about 970210 wrongfully disobeyed a lawful order issued by Sgt F___, to wit: be at work at 0600 on 970210 to be dispatch, SNM failed to comply with the order by not showing up for work.
Awarded Restriction and 
extra duties for 45 days, reduction to E-1.  Not appealed.

970319:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.

970319:  	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.

970319:	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 disobeying the order of a SNCO, insubordinate conduct towards a SNCO, driving while intoxicated, and unauthorized absence (five occasions). 

970401:	SJA review determined the case sufficient in law and fact.

970404:	GCMCA [Commanding General] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 970425 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 introduced no decisional issues for consideration by the Board, but commented that his conduct was “not harsh” and that the character of his discharge has impacted his post-service life.

The Board offers the following observations.  When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as honorable.  Characterization of service as under other than honorable conditions 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 the award of nonjudicial punishment (NJP) on 5 occasions for violations of the Uniform Code of Military Justice (UCMJ) and by seven adverse counseling entries.  The applicant’s misconduct included unauthorized absence, disobedience of lawful orders, failure to go to appointed place of duty, insubordinate behavior, and driving under the influence of alcohol, (BAC 0.152%).  The applicant’s conduct and proficiency markings, which form the primary basis for determining the character of his service, reflect his misconduct, and fall below that required for an honorable characterization of service.  An upgrade to honorable would be inappropriate.  The applicant’s willful disregard for the rules and regulations that govern good order and discipline is accurately reflected in his discharge for misconduct. The NDRB found the applicant’s service record devoid of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded.  In fact, the Board found the applicant had been afforded thorough and detailed counseling on his deficiencies, beyond that normally provided, and was offered many avenues to correct his pattern of unauthorized absence and failure to report for duty.  Relief is therefore, denied.

In a signed statement, the applicant requested an administrative discharge under other than honorable conditions.  He refused counsel but was fully advised of the implications of his request.  The applicant signed his understanding that if discharged under other than honorable conditions, it might deprive him of virtually all veterans' benefits based upon his current enlistment, and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received therefrom may have a bearing.  Relief denied.

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. Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  The applicant provided only his DD-214, but no evidence of a contributing life post-service. The applicant should have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not abusing drugs or alcohol in order for consideration for an upgrade 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 hearing is not mandatory, but is strongly recommended.  This representation need not be a lawyer, but may be any person of stature and good standing in the community.

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.  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:  A6710/A9405/A9223