Author: CAP
Last saved by: Department of the Navy
Company: NCPB

Docket No. MD02-01138

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

 ex-LCpl, USMC
Docket No. MD02-01138

Applicant’s Request

The application for discharge review, received 020806, 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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030515.  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, as submitted

1.  I (Applicant) (social security number deleted) 10-21-77 AM requesting an upgrade on my discharge.  My discharge currently holds the status of Other than Honorable. I am requesting that it be upgraded to Honorable, so I may attend school to receive the proper assistance.

Documentation

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

Statement from Applicant, dated May 22, 2002
Applicant's DD Form 214 (Member 1 and 4)

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		960508 - 961229	COG

Period of Service Under Review:

Date of Enlistment:  961230		Date of Discharge:  001130

Length of Service (years, months, days):

	Active:    03  11  01
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  35

Highest Rank:  Cpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (11)		Conduct:  4.1 (11)

Military Decorations:  None

Unit/Campaign/Service Awards:  MM

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:

980213:	NJP for violation of UCMJ, Article 92:
Specification: Violate Sta 11000.3D by consuming alcoholic beverages under the legal age of 21.
Violation of UCMJ, Article 111:
Specification: Operate a motor vehicle under the influence of alcohol with a BAC level of .097% on 980107.
Awarded forfeiture of $100.00 per month for 2 months, restriction for 30 days, reduction to PFC.  Forfeiture and reduction suspended for 6 months.  Not appealed.

980218:	Counseled for deficiencies in performance and conduct.  [Office hour proceedings held on 980213 for the following deficiencies: my consumption of alcohol under the legal age of 21 and my operating a motor vehicle while under the influence of alcohol with a BAC level of .097%.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990808:	Counseled for deficiencies in performance and conduct.  [Failure to be at the place of appointment.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990818:	Counseled for deficiencies in performance and conduct.  [Substantiated spouse abuse and child neglect on my part by the MCAS Yuma Family Advocacy Case Review Committee.  I understand that I am directed to attend and complete Anger Management and to undergo Substance Abuse evaluation.  I further understand that attendance at Anger Management is my primary military duty.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000511:	Counseled for deficiencies in performance and conduct.  [Finding of substantiated level III mutual physical spouse abuse on my part by the MCAS Yuma Family Advocacy Case Review Committee.  I understand that I am directed to develop a plan to ensure the safety of my newborn child and complete any other treatment as deemed appropriate by Family Advocacy Program Office.  I further understand that attendance at these programs is my primary military duty.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000714:	NJP for violation of UCMJ, Article 92 (2 specs):
Specification 1: Violate a Military Protection Order on 000611, issued by LtCol on 000418.
Specification 2: Violate a Military Protection Order on 000613, issued by LtCol on 000418.
Awarded forfeiture of $667.00 per month for 2 months, restriction for 60 days.  Forfeiture suspended for 6 months.  Not appealed.

000723:	Vacate suspended forfeiture awarded at CO's NJP dated 000714.

000807:	Counseled for deficiencies in performance and conduct.  [Substantiated level IV spouse abuse with me at the perpetrator and my spouse as the victim during an incident that occurred on 11 June 2000 by the MCAS Yuma Family Advocacy Case Review Committee that met on 6 July 2000.  I understand that I am directed to attend and complete any treatment as deemed appropriate by Family Advocacy Program Office.  I further understand that attendance at this program is my primary military duty.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000822:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

000830:	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.

001024:	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 continued lack of compliance with the rules and regulations that apply to service members. 

001113:	SJA review determined the case sufficient in law and fact.

001115:	GCMCA [Commander, Marine Corps Air Bases Western Area, San Diego, CA] 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 001130 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:  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.  The Board has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities as requested in the issue.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered his discharge proper and equitable.   Relief denied.  

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, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.   At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.  Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  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 P1900.16E), 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 [e.g., Article 86, unauthorized absence for more than 30 days].

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 “afls14.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/A9453/A9445/A9221