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Docket No. MD01-00938

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

 ex-PFC, USMC
Docket No. MD01-00938

Applicant’s Request

The application for discharge review, received 010716, 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 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 OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  My command solely judged myself what was in my SRB.  My Discharge was unjust and not thoroughly evaluated.  I was young, dumb and sort immature & wasn't given a chance to prove myself to be an asset to my country & corps.  As time went on being in the Corps, I grew up in a way and seen life different.  I wanted to make the Corps my family & my life.  Reason for upgrade is that I want to go back in, now that I am older, I realize that I had a good thing in the Corps and my Command took that chance away from me Reason 1. is that I knew my job better than any Marine in the squadron. 2. Boxing incident that happened with me and I had a Congressional investigation done on my CO those he knew what we were doing wasn't SOP.  I love the Corps & my country.  I want another chance to prove myself.  I really want to go back into the Marine Corps.  I won't let you down.  I would really love & like to get a second chance.  One last note, if you look in my SRB, I have a lot of merits, mast and recommendations, always perfect PFT's.           

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:   USMC		None
	Inactive: USMCR(J)		920804 - 930802	COG

Period of Service Under Review:

Date of Enlistment:  930803		Date of Discharge:  970702

Length of Service (years, months, days):

	Active:    03  11  00
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  49

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.1 (10)			Conduct:  3.8 (10)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Marksman Badge, NDSM, SSDR, Meritorious Mast, LOA 

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:

940809:	NJP for violation of UCMJ, Article 86: UA (AWOL), from 1200, 940801 to 0730, 940802, violation of UCMJ, Article 86: UA (AWOL) from 0800, 940803 to 0835, 940803, violation of UCMJ, Article 92: Disobeyed Sgt R_____'s order to report to SNCOIC at 1200 on 940801.
	Award:  Forfeiture of $466.00 pay per month for 1 month (suspended for 6 months), restriction and extra duty for 30 days.  No indication of appeal in the record.

941219:	Counseled for deficiencies in performance and conduct.  Lack of judgment and complacent attitude in compliance with daily responsibilities.  Unsatisfactory progress in that PFC R_____ has been counseled on this matter numerous occasions.  Does not demonstrate the maturity, desire, and judgment to be recommended for promotion at this time.  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

950105:	Counseled for deficiencies in performance and conduct.  Conduct unbecoming a Marine which was prejudicial to the good order and discipline of this command.  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

950105:	NJP for violation of UCMJ, Article 86: UA, 1300, 941220 to 1345, 941220 from Motor T Platoon, Svc Co, 7^th Comm Bn; violation of UCMJ, Article 92: At Camp Hansen, Okinawa Japan, violated MARCORBASEJAPANO P11240.1A, Motor Vehicle Traffic Supervision, by operating a POV without a valid license.
	Award:  Forfeiture of $427.20 pay per month for 1 month, restriction and extra duty for 45 days, reduction to E-1.  Forfeiture of $466.00, suspended on 940809 is vacated and ordered executed.  No indication of appeal in the record.

970505:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 134 (2 Specifications):
	Specification 1: Was, on or about or between 961225 and 970105 disorderly, Specification 2: Was, on or about or between 961225 and 970105 disorderly.
	Findings:  to Charge I and specification 1 thereunder, not guilty.  To specification 2 under Charge I, guilty.   
	Sentence:  Forfeiture of $224.00 pay per month for 1 month, to perform hard labor without confinement for 30 days and restriction for 30 days, reduction to E-2.
	CA 970505:  Sentence approved and ordered executed.
	
970528:	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 special court-martial dated 5 May 1997, two non judicial punishments, statements of your supervisors, and other adverse entries contained on page 11 of your service record book.

970528:	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.

970605:	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 discreditable involvement with authorities during this enlistment as evident by your special court-martial dated 5 May 1997, two non judicial punishments, statements of your supervisors, and other adverse entries contained on page 11 of your service record book.

970626:	SJA review determined the case sufficient in law and fact.  Extracted from CG's message.

970626:	GCMCA, Commanding General, 2d Marine Aircraft Wing, 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 970702 under other than honorable conditions for misconduct due to a pattern of misconduct (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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 (C and D).

The applicant’s issue asserts that his youth and immaturity impaired his ability to serve and requests a discharge upgrade to re-enlist.  The applicant’s desire to return to military service is not grounds for which this Board will grant relief.  The Board found that the applicant’s age, education level, and test scores qualified him for enlistment.  While he may feel his immaturity was a factor that contributed to his action, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service.  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 is not warranted.

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 clemency, based on post-service conduct.  The applicant did not provide any of these documents.  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.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 31 Jan 97 until Present. 
B.  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.  

C.  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.

D.  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/A9301/A9453/AA9221