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Docket No. MD01-00729

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

ex-PFC, USMC
Docket No. MD01-00729

Applicant’s Request

The application for discharge review, received 010501, 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 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.  My discharge was inequitable because it was based on three isolated incidents in 36 months of service with no other adverse action.

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 this application. 

Documentation

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

Letter of Recommendation from Director of Music for the Sixth Baptist Church D____ W____
Letter of Recommendation from Pastor T___ T. S____ of the Sixth Baptist Church
Request for Criminal History Information

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		970721 - 971021	COG

Period of Service Under Review:

Date of Enlistment:  971022		Date of Discharge:  001013

Length of Service (years, months, days):

	Active:    02  11  21
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  12			AFQT:  47

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.7 (6)			Conduct:  3.6 (6)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Expert Badge

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:

980717:	Counseled this date concerning academic deficiencies while attending the MASOC 4098, which have resulted in academic recycle to the next class.  These deficiencies are: substandard performance by failing to achieve academic course standards, despite retesting.  Such performance indicates a lack of adequate study habits, poor initiative, and/or inability to grasp the subject matter.  I understand that this academic recycle is to allow me the opportunity to overcome these deficiencies.  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

981215:	Counseled for deficiencies in performance and conduct.  [Unsatisfactory weapon and gear accountability.  Specifically removing gear from the seabag after inspection just prior to AP Hill Exercise, 981018.  On 981027 you left your M-16A2 Service rifle on a bus upon returning from AP Hill.  On 981105 during the Helo Raid Course, you lost a lensatic compass after being told twice to "dummycord" it to your 782 gear.  Additionally, on 981116 you failed to bring your forward observer equipment required for FSCEX to include: Pens, map, protractor, and paper.  That same day you lost a second map at OP-2 CLNC].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

981218:	NJP for violation of UCMJ, Article 86: UA from his appointed place of duty on or about 0631, 981116, to 0655, 981116; violation of UCMJ, Article 92: On or about 0130, was dereliction in the performance of his duties by sleeping during phone watch.
	Award:  Forfeiture of $242.00 pay per month for 1 month, restriction and extra duty for 14 days (7 restriction and extra duty days suspended for 6 months).  Not appealed.

990107:	Counseled for deficiencies in performance and conduct.  [Unsatisfactory personal appearance and lack of integrity.  Specifically chemically coloring your hair an unnatural and eccentric shade of "orange", conspicuous and uncomplimentary of your complexion.  In addition to this you intentionally modified your eyebrows to give the appearance of four (4) separate and distinct eyebrows where there belong only two.  If this weren't enough you were asked about this on two separate occasion, you replied “I was born this way", Basically lying about your action, taking no responsibility for yourself or your judgement].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990119:	NJP imposed and suspended on 981218 for a period of 6 months is hereby vacated and is ordered executed.

990121:	NJP for violation of UCMJ, Article 86: Did on or about 0700, 990104, without authority, absent himself from his place of duty, to wit: BLT 3/8, Company Formation, and did remain absent until he surrendered on or about 1745, 990104.
	Award:  Restriction and extra duty for 14 days.  Not appealed.

990317:	Counseled for deficiencies in performance and conduct.  [Insubordinate conduct to a non commissioned officer].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990630:	Counseled for deficiencies in performance and conduct.  [Improperly shaving, not properly preparing lesson plans for an Artillery call for fire class, and failing to properly prepare your 782 Gear for the Change of Command practice].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000308:	Counseled for deficiencies in performance and conduct.  [Did not follow orders given by his chain of command by not displaying clean serviceable gear for the Btry CO's Wall-locker/JOB reinspection following SNM's failure of the BnCO's Wall-locker/JOB inspection.  SNM failed the reinspection].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000425:	NJP for violation of UCMJ, Article 86: Did on or about 0730, 000411, without authority fail to go at the time prescribe to his appointed place of duty, to wit: Battalion Liaison officer at 0730; violation of UCMJ, Article 92: Did on or about 0730, 000411, fail to obey a lawful order issued by Battalion Commander, by having a female stay the night in the barracks.
	Award:  Forfeiture of 7 days pay ($288.00), restriction and extra duty for 14 days.  Not appealed.

000613:	NJP for violation of UCMJ, Article 92: Did onboard CLNN on or about 0005, 000522 failed to obey a lawful order issued by Commanding General, by wrongfully wearing earring on liberty.
	Award:  Correctional Custody Unit for 30 days, reduction to E-2.  Not appealed.

000630:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

000630:	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.

000630:	Commanding Officer, 3d Battalion, 10^th Marine recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  The factual basis for this recommendation was the characterization of your service book, and the comment of your peers. 

000726:	Commanding Officer, 10^TH Marine recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

001003:	SJA review determined the case sufficient in law and fact [Extracted from CG's message dtd 001005].

001005:	GCMCA [Commanding General, 2d Marine Division, II Marine Expeditionary Force] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 001013 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 his discharge was inequitable because it was based on three isolated incidents in 36 months of service with no other adverse action.  The service record revealed the applicant received four NJPs and six negative official counseling entries.  The Board found this constituted a clear pattern of misconduct.  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 denied.

Issue 2.  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 92, failure to obey orders.

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/A9455/A9235