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Docket No. MD02-00425

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

 ex-Pvt, USMC
Docket No. MD02-00425

Applicant’s Request

The application for discharge review, received 020221, 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 listed the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 021029.  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-Pattern of misconduct (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  (Equity Issue) This former member further requests that the Board include provisions 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:

Statement from Applicant dated February 22, 1998
Character reference dated March 3 1998
Copy of Applicant's DD Form 214
Copy of Applicant's DD Form 215
Seven pages from Applicant's service record

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		871219 - 871227	COG

Period of Service Under Review:

Date of Enlistment:  871228		Date of Discharge:  900228

Length of Service (years, months, days):

	Active:    02  02  01
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  50

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.1 (8)			Conduct:  3.8 (8)

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct-Pattern of misconduct (administrative discharge board required but waived), authority:  MARCORSEPMAN Par. 6210.3.

Chronological Listing of Significant Service Events:

880923:	NJP for violation of UCMJ, Article 86:
Specification: No further information found in service record.
Violation of UCMJ, Article 91:
Specification: Disrespectful in language toward a Staff Noncommissioned Officer by staying to him, "I just gaffed you off" on 14Sep94.
Violation of UCMJ, Article 92:
Specification: failure to obey a lawful order issued by SSgt to report back to work immediately after taking care of personal business at NFCU on 1500, 13Sep88.
Awarded forfeiture of $300.00 per month for 1 month, reduction to Pvt.  Reduction suspended for 3 months.  Not appealed.

881201:	Counseled for deficiencies in performance and conduct.  [Alcohol related incident, specifically, drunk and disorderly behavior.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

881205:	Vacate suspended reduction awarded at CO's NJP dated 23Sep88.

890925:	NJP for violation of UCMJ, Article 92:
Specification: Failure to obey lawful order by drinking alcohol and having alcohol in his possession on 1830, 19Sep89.
Awarded forfeiture of $350.00 per month for 2 months, restriction and extra duties for 30 days.  Forfeiture of $150.00 pay per month for the 2 months, restriction and extra duty for 15 days suspended for 6 months.  Not appealed.

891027:	Counseled for deficiencies in performance and conduct.  [Irresponsibility and inability to maintain the sufficient amount of funds in checking and/or savings account to suffice the checks written.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

891221:	Counseled for deficiencies in performance and conduct.  [Inability to maintain sufficient amount of funds in checking or savings account to cover checks written.  Being at the appointed place of duty at the time prescribed.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

891222:	Vacate suspended forfeiture of $150.00 for 2 months and restriction and extra duty for 15 days awarded at CO's NJP of 25Sep89.

891222:	NJP for violation of UCMJ, Article 134:
Specification: Unlawfully make and utter a check in the figure of $60.00 to the MWR on 8Dec89.
Awarded forfeiture of $200.00 per month for 2 months, restriction and extra duties for 30 days.  Forfeiture of $200.00 pay per month for 2 months, restriction and extra duty for 30 days suspended for 6 months.  Not appealed.

900108:	Vacate suspended forfeiture of $200.00 for 2 months, restriction and extra duty for 30 days awarded at CO's NJP of 21Dec89.

900122:	NJP for violation of UCMJ, Article 92:
Specification: Violation of B01700.6G by having an alcoholic beverage in his possession on 1355, 6Jan90.
Awarded reduction to Pvt.  Not appealed.

900205:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

900205:	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.

900205:	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 nonjudicial punishments on 23 September 1988, 25 September 1989, 22 December 1989 and 22 January 1990, and adverse page 11 entries of 1 December 1988, 27 October 1989 and 21 December 1989. 

900223:	SJA review determined the case sufficient in law and fact.

900223:	GCMCA [Commanding General, 2^nd Marine Division, Fleet Marine Force, Camp Lejeune, NC] 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 900228 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.  A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a Marine.  The Applicant’s service was marred by award of nonjudicial punishment (NJP) on four 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 the naval service, and falls short of that required for a characterization of service under honorable conditions.  While he may feel that his youth and alcoholism were factors that contributed to his actions, 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 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.  The Board determined that the Applicant’s evidence of post-service conduct did not mitigate the misconduct for which he was discharged.  Relief not warranted.

The Applicant 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.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210, Misconduct, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D), 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 92, failure to obey a lawful general order; Article 134, unlawful checks.

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:  A6710/A9221/A9217/A9223/A9301/A9319/