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Docket No. MD01-00471

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

 ex-Pvt, USMC
Docket No. MD01-00471

Applicant’s Request

The application for discharge review, received 010227, 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 020215.  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 HONORABLE CONDITIONS (GENERAL)/Unsatisfactory Performance - Unsatisfactory Performance of duties (administrative discharge board not required), authority: MARCORSEPMAN Par. 6206.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  To whom it my concern

I am requesting that my discharge be changed to an honorable discharge for a number of reasons.  First I did have 3 years of service without getting in any trouble.  I realize that going UA was wrong but there were extenuating circumstances.  I had just found out that my father had been diagnosed with cancer and it messed me up pretty bad.  I realize that what I did was wrong but at the time spending time with my father before he died seemed more important.  You see the cancer was terminal and I had just met my real dad a couple months before.  After spending time with him my conscious got the best of me and I returned.  Nobody every had to come get me I always came back on my own.  I always loved the Corps and I regret everything I did.  I wish I could do it all over again I would decently do things different.  I want you to know I did go through channels to try and get stationed closer to home but nothing was working fast enough after I came back the second time I had to do 30 day in the brig.  While in there my father died and was buried before they could get me home even though I had red cross messages and letters from the doctor and my grandma saying he was dying.  I thank you for you time and hope that it will be changed thank you.

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)		880712 - 890705	COG

Period of Service Under Review:

Date of Enlistment:  890706		Date of Discharge:  940427

Length of Service (years, months, days):

	Active:    04  09  22
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  55

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0 (10)			Conduct:  3.8 (10)

Military Decorations:  None

Unit/Campaign/Service Awards: NDSM, SSDR (2), SASM (3), CAR, KLM

Days of Unauthorized Absence:  197

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

UNDER HONORABLE CONDITIONS (GENERAL)/Unsatisfactory Performance - Unsatisfactory performance of duties (administrative discharge board not required), authority:  MARCORSEPMAN Par. 6206.3

Chronological Listing of Significant Service Events:

880712:	Enlistment physical:  Weight: 202 pounds.

910819:	Civil Conviction:  Onslow County District Court for violation of worthless checks.
Sentence:  Supervised probation for 1 year, fined $335.59.

911212:	Counseled for deficiencies in performance and conduct.  [Failure to maintain sufficient funds in his checking account and to pay for debts that he was obligated to pay].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920929:	Applicant from unauthorized absence 0710, 29Sep 92.

921209:	Weight Control Screening: Weight: 203 pounds.  Body Fat: 25.5%.

930423:	NJP for violation of UCMJ, Article 86:
Specification: Absent from appointed place of duty on 0630, 20May92 until 1330, 28Sep92 (131 days/surrendered).
Awarded forfeiture of $454.50 per month for 2 months, restriction and extra duties for 45 days, reduction to PFC.  Not appealed.

930426:	Counseled for deficiencies in performance and conduct.  [Violation of the UCMJ, Specifically Art 86].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

930624:	NJP for violation of UCMJ, Article 92 (2 specs):
Specification 1: Fail to obey a lawful order by not going to BAS after 1stSgt ordered him to go on 0700, 20May93.
Specification 2: Fail to have name tags sewn onto his camouflage utility uniform on 2Jun93.
Violation of UCMJ, Article 91:
Specification: Failed to get rid of a ferret as told to by SSgt on 14May93.
Awarded forfeiture of $407.00 per month for 4 months, restriction and extra duties for 45 days, reduction to Pvt.  Forfeiture of pay for 2 months suspended for 6 months.  Not appealed.

930706:	Applicant placed on weight control.  Body fat 28%.

930707:	Vacate suspended forfeiture awarded at CO's NJP on 23Apr93.

930723:	Applicant scheduled for weight management classes on 19 and 26Aug93.

930809:	NJP for violation of UCMJ, Article 86:
Specification: Fail to show up for Battery's departure to the field on 0600-0800, 9Aug93.
Awarded forfeiture of $190.00 per month for 1 month, restriction and extra duties for 14 days.  Forfeiture suspended for 6 months.  Not appealed.

930827:	Applicant no show for weight management class.  Called to reschedule with Lt - dates for classes pending pt's leave time.  Please resubmit if counseling desired.

940203:	Discharge physical:  Weight 235 pounds.

940308:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 86:
	Specification: Unauthorized absence from 0630, 17Sep93 to 1130, 22Nov93 (66 days/surrendered).
	Charge II: violation of the UCMJ, Article 123a:
	Specification 1: Utter three worthless checks for $145.00, $55.00, and $48.00.
	Specification 2: Utter one worthless check for $80.13.
	Specification 3: Utter two worthless checks for $10.00 and $23.15.
	Charge III: violation of the UCMJ, Article 92:
	Specification: Failure to obey BN order.
	Finding:  to Charge I, II and III and the specifications thereunder, guilty.
	Sentence:  Forfeiture of $554.00, confinement for 30 days.  Forfeiture suspended for 6 months.
	CA action 000000:  Sentence approved and ordered executed.

940308:	Applicant to confinement.

940322:	Applicant released from confinement.

940427:	DD Form 214: Discharged: under honorable conditions (general) by reason unsatisfactory performance due to unsatisfactory performance of duties (discharge board not required).

Discharge package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 940427 under honorable conditions (general) due to unsatisfactory performance due to unsatisfactory performance of duties (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).

Issue 1.  The Board found that the applicant was discharged for his unsatisfactory performance while on weight control.  The applicant’s characterization of service of under honorable conditions (general) was proper and equitable.  The applicant had average performance evaluation conduct markings of below 4.0 and had received one civilian conviction, three nonjudicial punishments, and a summary court-martial. While the Board sympathizes with the applicant’s claim that his dying father should be a mitigating factor, the record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice is evident during the applicant’s enlistment.  Additionally, 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 civilian life, subsequent to leaving the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  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.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct.  The applicant did not provide sufficient documentation to warrant an upgrade to his discharge.  He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6206, UNSATISFACTORY PERFORMANCE, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 890627 until 950817, except for subparagraph 1, which was retroactively changed by ALMAR 57/93, effective 920310.

B.  ALMAR 57/93 (CMC 161805Z FEB 93), REVISED ENLISTED SEPARATION POLICY FOR WEIGHT CONTROL FAILURE.

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

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: A4900/A9217/A9307/A9201/A9227/A9221