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

ex-PVT, USMC
Docket No. MD01-00147

Applicant’s Request

The application for discharge review, received 001115, 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 010601.  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 – Minor disciplinary infractions (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.2.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  (Equity Issue) The former member avers that he was treated unfairly and punished more often by his command because he was married.  On this basis, he opines that separation under honorable conditions is warranted.

2.  (Equity Issue) This former member further requests that the Board include provision 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:

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)		910228 - 910326	COG

Period of Service Under Review:

Date of Enlistment:  910327		Date of Discharge:  920821

Length of Service (years, months, days):

	Active:  01  04  24
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  11			AFQT:  74

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.92 (4)		Conduct:  3.4(4)

Military Decorations:  None

Unit/Campaign/Service Awards:  M16 Expert Badge, Pistol Expert Badge, NDSM, MUC 

Days of Unauthorized Absence:  None 

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Minor disciplinary infractions (administrative discharge board required but waived), authority:  MARCORSEPMAN Par. 6210.2.

Chronological Listing of Significant Service Events:

910819:	NJP for violation of UCMJ, Article 86: Did at MarCorDet Lackland AFB, TX, Bldg 10650, on or about 0600, 910817, without authority, failed to go at the prescribed time to his appointed place of duty, to wit: PFT formation, violation of UCMJ, Article 91: Failed to obey a lawful order issued by GySgt D.R. V____ to report to the Staff Duty for transportation to sick call on or about 0600, 910817; violation of UCMJ, Article 92: Failed to obey a lawful order issued by the Commanding Officer, MarCorDet Lackland AFB, TX, to wit: MCDetO 1000.1 dated 910110, by consuming alcohol while under the legal drinking age; violation of UCMJ, Article 134: Incapacitated for the performance of duty as a result of wrongful previous overindulgence in intoxicating liquor on or about 910817.
Awarded forfeiture of $250.00 per month for 1 month (forfeiture of $150.00 pay per month for 1 month suspended for 3 months), restriction for 14 days, extra duties for 30 days.  Not appealed.

911211:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 86: Did on or about 1900, 911028, without authority absent himself from appointed place of duty, to wit: Quantico Base Brig, MCCDC, located at Quantico, VA, until 2225, 911028.  Charge II: violation of the UCMJ, Article 111: Did at MCCDC, Quantico, VA, on 2245, 911027, on Fuller Rd, adjacent Bldg #3084, Gate #1, MCCDC, operate a vehicle, to wit: a passenger car, while drunk.  Charge III:  violation of the UCMJ, Article 92: Having knowledge of a lawful order issued by GySgt W.T. J____ not to go to the 7-day store, did at MCCDC, Quantico, VA, on 1900, 911028, fail to obey the same.
	Finding:  to Charge I and the specification thereunder, not guilty.  To Charge II and the specification thereunder, Dismissed.  To Charge III and the specification thereunder, guilty.
	Sentence:  Conf for 30 days, forfeiture of $500.00 pay per month for 1 month.
	CA action 911224:  Sentence approved and ordered executed except for the sentence extending to forfeiture of $500.00 pay per month, is hereby suspended for a period of 6 months, unless sooner vacated, will be remitted without further action.

920103:	Counseled for deficiencies in performance and conduct.  [Frequent violation of the UCMJ] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920310:	Counseled for deficiencies in performance and conduct.  [Alcohol related incident, specifically, driving while intoxicated on 911027 and my blood alcohol content (BAC) was recorded .18%] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920723:	NJP for violation of UCMJ, Article 92: Was derelict in the performance of his duties by failing to remain awake on duty, 920707, violation of UCMJ Article 92: Was derelict in the performance of duties by failing to respond to fire alarm, 920702.
	Award:  Forfeiture of $392.00 per month for 2 months (suspended for 3 months), restriction and extra duty for 45 days (suspended for 3 months), reduction to E-1.  Not appealed.

920729:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.

920803:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

920806:	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 three minor disciplinary infractions which have occurred during your current enlistment.  Specifically, on 910819, you received NJP for violation of articles 86, 91, 92, and 134, UCMJ.  On 911211, you received a summary court-martial for violation of article 86, 111, and 92, UCMJ.  Further, on 920723, you received NJP for violation of article 92, UCMJ.  Commanding officer’s comments: [(verbatim), if appropriate]: 

920815:	SJA review determined the case sufficient in law and fact.

920818:	GCMCA [Commanding General, Marine Corps Combat Development Command] 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 920821 under other than honorable conditions for misconduct due to minor disciplinary infractions (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 considering the applicant’s issues, the Board found no evidence that he was treated unfairly or punished because he was married.  Further, the Board disagrees with the applicant’s assertion that his overall service record warrants an honorable discharge.  When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as honorable.  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 award of a Summary Court-Martial, at which he was found guilty of failing to obey a lawful order, by nonjudicial punishment (NJP) for offenses triable by court-martial on two other occasions and adverse counseling entries on two occasions.  The applicant’s misconduct included violations of Articles 86, unauthorized absence, 92 disobedience of a lawful order and dereliction of duty, and 134, incapacitated for duty by intoxicating liquor.  Further, the applicant was counseled for operating a motor vehicle with a BAC of 0.18%.  The applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful disobedience of the orders and directives which regulate good order and discipline in naval service, and falls short of that required for an honorable characterization of service.  An upgrade to honorable would be inappropriate.  Relief is therefore denied.

The applicant also appealed for relief based on post-service conduct, however, failed to provide any proof or documentation of credible service to the community.  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 the Board only a copy of his DD-214.  His efforts need to be more encompassing than those provided.  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   sobriety in order for consideration for 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 including the various veterans’ organization.

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 92, failure to obey a lawful order.

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 “afls10.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