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

 ex-Pvt, USMC
Docket No. MD01-01166

Applicant’s Request

The application for discharge review, received 010906, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.  Subsequent to the application, the applicant obtained representation from the Veterans of Foreign Wars.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020417.  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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  I feel that I was done unjustly at my court-martial (general).  Job performance and attitude and conduct were satisfactory up until the court-martial.  I was never a real problem to my unit or my NCO's.  I got a lawyer and went to the separation board to try to finish out my enlistment.  I only had about 4, 5, 6 months left. (can't remember exactly) I liked my job and serving my country.  I wanted to stay and do my term.  Now I am out of active duty, I want to go to college with my G.I. Bill.  But to do that, I have to have my discharge upgraded.  I know I was not big problem, cause I didn’t' get a Bad discharge.  I was "General Under Honorable Conditions."  An I feel it should be upgraded. Also, even though I cant go active duty, is there any way that I can get a waiver to at least reserves?  (If my discharge is upgraded to an Honorable)

2.  We ask that you review this case based on the applicant's issue and the evidence of record and that you change the discharge as appropriate.

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		940618 - 940724	COG

Period of Service Under Review:

Date of Enlistment:  940725		Date of Discharge:  970401

Length of Service (years, months, days):

	Active:    02  08  07
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  46

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.9 (7)			Conduct:  3.2 (7)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, Letter of Appreciation

Days of Unauthorized Absence:  None

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.3.

Chronological Listing of Significant Service Events:

941115:	Counseled for deficiencies in performance and conduct.  [Through neglect, lost government property, a violation of Article 108 of the UCMJ.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950912:	NJP for violation of UCMJ, Article 92:
Specification: Disobeyed BO P5101.3P by driving while on base suspension at 1500, 15Aug96.
Violation of UCMJ, Article 107:
Specification: Falsify a statement with intent to deceive by saying your vehicle was currently registered on base at 1330, 28Aug95.
Violation of UCMJ, Article 134:
Specification: Dishonorably failed to pay a debt of $767.00 at 0900, 21Aug95.
Awarded forfeiture of $223.00 per month for 1 month, restriction and extra duties for 14 days.  Forfeiture of $173.00 for 1 month suspended for 6 months.  Not appealed.

960117:	NJP for violation of UCMJ, Article 92:
Specification: Drive while on base suspension/revocation at 1230, 30Dec95.
Awarded forfeiture of $478.00 per month for 1 month, restriction and extra duties for 30 days.  Forfeiture of $478.00 and restriction and extra duty for 15 days suspended for 6 months.  Not appealed.

960624:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 86 (2 specs)
Specification: Absent from appointed place of duty at 1230 to 1710 27Apr96.
	Specification 2: Absent from appointed place of duty at 0530 to 1500, 3May96.
	Finding: to Charge I and the specifications thereunder, guilty.
	Sentence: Forfeiture of $200.00, restriction for 30 days, reduction to Pvt.
	CA action 960710:  Sentence approved and ordered executed except for forfeiture of $200.00 for 1 month is suspended for 6 months at which time unless sooner vacated will be remitted without further action.

960628:	Counseled for deficiencies in performance and conduct.  [Absent from appointed place of duty on 960427 and 960303.  Insubordinate conduct toward a warrant officer, noncommissioned officer, or petty officer on 960427 by disobeying a lawful order from a Staff Noncommissioned Officer to not depart your assigned place of duty.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  Applicant desired to make a statement.

960717:	Vacate forfeiture of $478.00, restriction and extra duty for 15 days awarded at CO's NJP 7Jan96.

960822:	NJP for violation of UCMJ, Article 92:
Specification: Fail to obey an order or regulation on 9Aug96.
Awarded forfeiture of $437.00 per month for 1 month, restriction and extra duties for 30 days.  Forfeiture of $437.00 and restriction and extra for 15 days suspended for 6 months.  Not appealed.

960831:	Applicant to confinement.

960906:	Vacate suspended awarded at summary court-martial on 10Jul96.

961029:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 86 (6 specs):
	Specification 1: Absent from appointed place of duty at 0700, 31Aug96.
	Specification 2: Absent from appointed place of duty at 0730, 31Aug96.
	Specification 3: Absent from appointed place of duty at 0900, 31Aug96.
	Specification 4: Absent from appointed place of duty at 1100, 31Aug96.
	Specification 5: Absent from appointed place of duty at 1300, 31Aug96.
	Specification 6: Absent from appointed place of duty at 1500, 31Aug96.
	Charge II: violation of the UCMJ, Article 134:
	Specification: Break restriction on 24Aug96.
	Finding: to Charge I and II and the specifications thereunder, guilty.
	Sentence:  Forfeiture of $582.00, confinement for 30 days.
	CA action 961122:  Sentence approved and ordered executed.

961210:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

961210:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

961216:	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 6105, page 11 entry dated 28 June 1996, three nonjudicial punishments dated 15 September 1995, 23 January and 22 August 1996, and two summary courts-martial dated 24 June and 29 October 1996.  

970203:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to a pattern of misconduct, by a vote of 2 to 1 that the misconduct warranted separation, and by a vote of 2 to 1 recommended discharge under honorable conditions (general).

970311:	SJA review determined the case sufficient in law and fact.

970313:	GCMCA [Commanding General] directed the applicant's discharge under honorable conditions (general) 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 970401 general (under 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.  A characterization of service of under honorable conditions (general) 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 three occasions, a summary 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 to honorable 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 denied. 

Issue 2. 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 31 Jan 97 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, unauthorized absence; Article 92, failure to obey a lawful general order; Article 107, false statements; Article 134, indebtedness.

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