Author: CAP
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Docket No. MD01-00697

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

ex-PVT, USMC
Docket No. MD01-00697

Applicant’s Request

The application for discharge review, received 010423, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  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 011018.  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. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  I would like to have my discharge upgraded for the following reasons.  While I was on active duty I wasn't to smart and did some idiotic things that would cause me to be late to formation and miss other important events.  I regret these things and realize what I had done was childish and irresponsible.  I have made some changes for the better out here in civilian life and would like the chance to re-enter the service and be able to prove that I am a different person and have rectified my mistakes.  I am willing to do anything it takes to get back into the service and prove that I am an outstanding Marine. I know in my heart I messed up and have payed for it but I feel the discharge I was given is just a little harsh for my mistakes.  So if you could find it in your hearts to upgrade my discharge I would greatly appreciate it.

Documentation

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

Employment Reference Letter
Copy of DD Form 214
Applicant's copy of the Administrative Discharge Package

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		941031 - 941108	COG

Period of Service Under Review:

Date of Enlistment:  941109		Date of Discharge:  961017

Length of Service (years, months, days):

	Active:    01  11  09
	Inactive:  None

Age at Entry:  22			Years Contracted:  4 

Education Level:  11			AFQT:  46

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (5)			Conduct:  4.1 (5)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, Rifle Marksmanship Badge(2)

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. 6210.3.

Chronological Listing of Significant Service Events:

950301:	Counseled for deficiencies in performance and conduct [unsatisfactory training progress].  Necessary corrective actions explained, sources of assistance provided.

951204:	Counseled for deficiencies in performance and conduct [for repeated absences without the proper authorization which are violations of Article 86].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960118:	NJP for violation of UCMJ, Article 86:  unauthorized absence in that member did without proper authority absent himself from his appointed place of duty to wit:  CSSD 21, MTM Section, MCAS Cherry Point, NC, on or around 960104, 0700.
Awarded reduction to E-1, confinement to CCU at MCB CLNC for 30 days, forfeiture of $425.00 per month for 2 months (suspended for six months).  Not appealed.

960501:	NJP for violation of UCMJ, Article 86:  Unauthorized absence - in that Pvt (Applicant), did absence himself from a PFT being held at the PFT filed on 960403 at 0600; violation of UCMJ, Article 112:  Drunk on duty - PVT (Applicant) did arrive to work at 0800 with alcohol on his breath and was vomiting, it was determined he had consumed alcohol before reporting for duty, sent to clinic for eval; violation of UCMJ, Article 86, 2^nd Spec:  in that he did, on or about 0730, 22 Apr 96, absence himself from morning formation without proper authority to wit:  CSSD 21, MTM Section, MCAS Cherry Point, NC, and did remain so absent until 0750, 22 Apr 96.
	Award:  Forfeiture of $250 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

960611:	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 numerous incidents of unauthorized absence in being, absent from morning formation on 4 Jan 96, you were awarded NJP on 18 Jan 96.  As a result of your first NJP you were awarded reduction to E-1, confined for 30 days at Corrective Custody Unit; forfeiture of $425.00 a month for two months for a total of $850.00.  On 1 May 1996 NJP was held for two counts of Violation of Article 86 (Unauthorized Absence) and Violation of Article 112 (Drunk on duty).  Award forfeiture of $250 for two months for a total of $500, 45 days restriction, and 45 day EPD, held by the Commanding Officer, while attached to this unit.

960717:	Applicant advised of his rights and having consulted 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.

960717:	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 numerous unauthorized absences, and drunk on duty. SNM has been subject to two NJP's for these offenses.

960927:	SJA review determined the case sufficient in law and fact.

960930:	GCMCA [CO, 2^nd FSSG, Camp Lejeune] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct pursuant to paragraph 6210.3 MARCORPSMAN.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 961017 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).

Issue 1.  The applicant stated the discharge he was given was just a little harsh for his mistakes.  The Board disagrees.  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 nonjudicial punishment (NJP) for offenses triable by court-martial on two occasions and adverse counseling entries on other occasions.  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 would be inappropriate.  It must be noted that most Marines serve honorably and well and therefore earn honorable discharges.   In fairness to those Marines, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due.  Relief is not warranted.

The applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred 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 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 Aug 95 until Present. 

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 86, absent from place of duty; Article 112, drunk on duty.

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/A9405/A9223