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Docket No. MD01-00559

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

ex-PFC, USMC
Docket No. MD01-00559

Applicant’s Request

The application for discharge review, received 010322, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance hearing before the board in the Washington National Capital Region.  The applicant did not list any representative on the DD Form 293.  Subsequent to the application, the applicant obtained representation by the American Legion.

Decision

A personal appearance hearing discharge review was conducted in Washington, D.C. on 011009.  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 (admin discharge board required but waived), authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1. (Equity Issue) As evidenced by his supporting documentation and testimony, this former member opines that his post-service conduct has been sufficiently creditable to warrant the Board’s clemency relief with recharacterization of his service period to Honorable as authorized under provisions 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
Character references (2)

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		860211 - 860217	COG

Period of Service Under Review:

Date of Enlistment:  860218		Date of Discharge:  890731

Length of Service (years, months, days):

	Active:    03  05  14
	Inactive:  None

Age at Entry:  21			Years Contracted:  4

Education Level:  12			AFQT:  50

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.8 (10)			Conduct:  3.5 (10)

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR

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 (admin discharge board required but waived), authority:  MARCORSEPMAN Par. 6210.3.

Chronological Listing of Significant Service Events:

860722:	NJP for violation of UCMJ, Article 86:
Specification: Absent from appointed place of duty 1101, 7Jul86.
Awarded forfeiture of $161.00 per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

861021:	NJP for violation of UCMJ, Article 128:
Specification: Assaulted PFC on 0400, 17Oct86.
Awarded forfeiture of $150.00 per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

861208:	Counseled for deficiencies in performance and conduct.  [Inability to follow orders and directions from your superiors.  Extremely unmotivated and carrying a lackadaisical attitude.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

861219:	NJP for violation of UCMJ, Article 115:
Specification: Go to sick call to avoid training on 0730, 18Dec86.
Awarded forfeiture of $300.00 per month for 1 month, restriction and extra duties for 14 days, reduction to Pvt.  Forfeiture and reduction suspended for 2 months.  Not appealed.

870106:	Vacate forfeiture of $300.00 awarded at CO's NJP dated 19Dec86.

870311:	Counseled for deficiencies in performance and conduct.  [Writing personal checks without maintaining sufficient funds.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

880404:	Counseled for deficiencies in performance and conduct.  [Flagrant disregard for the rules and regulations of the USMC and the rules of good order.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

890208:	Counseled for deficiencies in performance and conduct.  [Poor physical condition and lack of self-discipline.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

890209:	NJP for violation of UCMJ, Article 92:
Specification: Fail to obey lawful order issued by SSgt to return to work upon completion of appointment on 1000, 24Jan89.
Awarded restriction and extra duties for 7 days.  Not appealed.

890407:	Commanding General, 1^st Marine Division (Rein), FMF directed that the respondent be retained in the service based on Third Endorsement on CO, 1stBn, 4^th Mar letter dated 27Mar89.

890512:	Counseled for deficiencies in performance and conduct.  [Recommended for an administrative separation due to a pattern of misconduct.  The Commanding General has determined that you be retained in the service.  Based on your previous misconduct and poor attitude you are advised that further actions of this nature will result in judicial proceedings or administrative separation.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

890519:	NJP for violation of UCMJ, Article 91:
Specification: Disobeyed the order of GySgt not to sleep in his BEQ room during working hours.
Violation of UCMJ, Article 134:
Specification: Make and utter a check for $20.00 to Navy Resale Activity on 12Oct88 and thereafter dishonorably failed to maintain sufficient funds in bank to cover the check on presentment.
Awarded forfeiture of $407.00 per month for 2 months, restriction and extra duties for 45 days, reduction to PFC.  Forfeiture of $407.00 for 2 months suspended for 3 months.  Not appealed.

890620:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by your five nonjudicial punishments.

890620:	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.

890620:	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 five nonjudicial punishments.  

890628:	SJA review determined the case sufficient in law and fact.

890629:	GCMCA [Commanding General, 1^st Marine Division (Rein), FMF] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

890728:	NJP for violation of UCMJ, Article 86 (2 specs):
Specification 1: Absent from appointed place of duty on 0630-0745, 21Jul89.
Specification 2:Absent from appointed place of duty -0530--0700, 25Jul89.
Awarded forfeiture of $182.00 per month for 1 month.  Not appealed.

901220:	NDRB documentary record review Docket Number MD90-01422 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT 
REGULATION/LAW

Discussion

The applicant was discharged on 890731 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).

The applicant and his representative submitted the following as an issue: “(Equity Issue) As evidenced by his supporting documentation and testimony, this former member opines that his post-service conduct has been sufficiently creditable to warrant the Board’s clemency relief with recharacterization of his service period to Honorable as authorized under provisions of SECNAVINST 5420.174C., enclosure (1), paragraph 9.3.”  The Board took into full consideration all of the applicant’s service including the multiple infractions of discipline, the extent thereof, and the seriousness of the offenses.  The Board determined that the applicant’s poor personal conduct and overall performance while in the service were not mitigated by the applicant’s post-service conduct.  While the applicant’s post-service accomplishments were commendable, the applicant’s misconduct diminished the quality of his service record to a point where extraordinary post-service accomplishments and documentation would be necessary for a recharacterization of service.  Therefore, the Board voted against granting relief.

This decision exhausts the applicant’s opportunity for review by the NDRB.  The applicant remains eligible to apply for an upgrade to the Board for Correction of Naval Records.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16C), Change 4, effective 29 Jul 87 until 26 Jun 89.

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, for 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

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/A9221/A9217