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

 ex-PFC, USMC
Docket No. MD01-00767

Applicant’s Request

The application for discharge review, received 010514, requested that the characterization of service on the discharge be changed to general under honorable conditions.  The applicant requested a personal appearance hearing discharge review before the Board in the Washington National Capital Region.  The applicant did not list any representative on the DD Form 293.  In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 011218.  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 four to one that the character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Minor disciplinary infractions (with administrative discharge board), authority: MARCORSEPMAN Par. 6210.2.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  I feel that my discharge type was unjust because I was only six months away from my ETS and the way all of the proceeding were handled too quickly.  Those who wanted to speak on my behalf were either ordered not to or they were persuaded not to do so.  I also believe that I was not a big threat that most of the marines at the hearing put me out to be.  Since then, I have been a model citizen and I have proof to support that.  I do not want to re-enlist because I am too old.  All I want is my discharge to be changed so I can get the benefits I deserve and I would rather ask you all this face to face.

Documentation

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

Letters of Recommendations (3)
Character Reference Letter t
Copies of DD Form 214 (2)
Letter of Appreciation
Copy of Recruiter of the Month Award 
Copy of 1998 Jaycee Award
Copy of 1998 E___ P. B___ Memorial Award
Copy of Rising Star of the Year Award 1997-1998
Copy of Mr M____ award 1999
Copy of Zeta-Zeta Zeta Fraternity Certificate
Copy of Rising Star of the Second Quarter award 1997
Copy of Certificate of Appreciation (Outstanding service as an ambassador for the 1994-95 academic year)
Copy of Dean's List Certificate for May 1999
Copy of Certificate of Participation 
Newspaper Article of West Virginia Rugby Team
Copy of Student Government Election Article
Copy of Colonial Dinner and a Cultural Walk Across America Program (2pgs)
Copy of News Article (Telethon Record Setting)
Copy of Picture of Mr M____ ceremony
Copy of Transcript from Southwest Virginia Community College
Copy of Newspaper Article (SVCC Rugby team)
Copy of Newspaper Article (Big Man on Campus) J___ B___ (2pgs)
Copy of Newspaper Article (Homecoming attendant, Mr M____ announced
Copy of Picture from Youth Football League game 

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		850920 - 851114	COG

Period of Service Under Review:

Date of Enlistment:  851115		Date of Discharge:  890630

Length of Service (years, months, days):

	Active:  03  07  26
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  64

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.9 (9)		Conduct:  4.0 (9)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Sharpshooter Badge, LOA, SSDRw1*, GCM 

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 (with administrative discharge board), authority:  MARCORSEPMAN Par. 6210.2.

Chronological Listing of Significant Service Events:

860530:	Counseled for deficiencies in performance and conduct.  [Overweight by Marine Corps standards]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

860731:	Assigned to weight control program IAW 6100.10 on 860522.  Present weight is 206, max weight 192.  Weight goal to be reached no later than 861022.
  
870806:	Counseled for deficiencies in performance and conduct.  [Your conduct and performance, personal hygiene, personal appearance, financial responsibility, physical endurance, and failure of recent EST test concerning you MOS]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

871105:	NJP for violation of UCMJ, Article 91: At Kahuku Training Area, 1400, 871020, willfully disobeyed the order of Cpl W___ to get ready for patrol, violation of UCMJ Article 91: At Kahuku Training Area, 1400, 871020, disrespectful to Cpl W____ by saying to him, "I'm not gonna go it's stupid for a machinegunner to go on patrol".
	Award:  Forfeiture of $178.00 pay per month for 1 month ($78.00 pay per month for 1 month suspended for 6 months), restriction for 14 days (7 days suspended for 6 months), extra duty for 14 days (7 days suspended for 6 months).  Not appealed.

880523:	Counseled for deficiencies in performance and conduct.  [Substandard performance during Team Spirit 1988, lack of discipline, lack of teamwork, slow to reaction and general apathy during the exercise]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

881207:	NJP for violation of UCMJ, Article 86: UA 0730, 881203 to 0930, 881203, from B Co, 1stBn, 3dMar.
	Award:  Restriction for 30 days, reduction to E-2.  Not appealed.

890313:	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 your 2 NJP's for various violations of the UCMJ and 4 page 11 entries. 

890314:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.

890314:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

890428:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to minor disciplinary infractions, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

890508:	SJA review determined the case sufficient in law and fact.

890511:	GCMCA [Commanding General, 1st Marine Expeditionary Brigade] 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 890630 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).

Issue 1.  The Board found no evidence that the applicant’s discharge proceedings were conducted in haste or in an improper or inequitable manner.  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 a characterization of service under honorable conditions.  Relief denied.

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 P1900.16D), 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 86, unauthorized absence from place of duty; Article 91, disobedience of a verbal 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