Author: CAP
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Docket No. MD03-00241

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

 ex-PVT, USMC
Docket No. MD03-00241

Applicant’s Request

The application for discharge review, received 20021121, 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 did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20031010.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  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 stated

Applicant’s issues, as stated on the application:

“1.  I wish an upgrade to rejoin active duty service.  I currently have been in the U.S. Army National Guard for the past 2 1/2 years.  I haven’t been in any trouble.  I want to serve my country in active duty status.  I’ve learned from my mistakes and have matured.  I would love a second chance to finish my career active duty.  I have a wife and seven year old daughter and I love the military.  Please give me another chance I will not let the Board or my country down again.  Thank you for your consideration.”

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)		870327 - 870920	COG

Period of Service Under Review:

Date of Enlistment:  870921		Date of Discharge:  901015

Length of Service (years, months, days):

	Active:    03  00  25
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  12			AFQT:  34

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (10)			Conduct:  3.9 (10)

Military Decorations:  None

Unit/Campaign/Service Awards:  OSR, LoA (2)

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:

880203:	NJP for violation of UCMJ, Article 92:  Failure to obey BnO 11101.5B by smoking in his rack.
Awarded forfeiture of $172.00 per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

881209:	Counseled for deficiencies in performance and conduct. [Reporting late to appointed place of duty.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

900216:	NJP for violation of UCMJ, Article 86:  Failure to go to appointed place of duty, to wit: 3dTkBn armory.
Awarded forfeiture of $207.00 per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

900216:	Counseled for deficiencies in performance and conduct. [Office hours dated 900216.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

900501:	NJP for violation of UCMJ, Article 92:  Failure to obey BnO 11103.1F by having liquor in his BEQ room.
Awarded forfeiture of $207.00 per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

900501:	Counseled for deficiencies in performance and conduct. [Office hours dated 900501 for violation of Art 92, UCMJ by having beer in the bks. BnO 11103.1F.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

900613:	NJP for violation of UCMJ, Article 112a:  Wrongfully use a Schedule I controlled substance, to wit: THC.
Awarded reduction to E-2, forfeiture of $400.00 per month for 2 months, restriction and extra duties for 45 days.  Not appealed.

900613:	Counseled for deficiencies in performance and conduct. [Bn Cmdr Office hours for violation of Art 112a (THC).]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

900713:	NJP for violation of UCMJ, Article 92.
	Specification 1: Operate a vehicle aboard MCAGCC while on base driving restriction.
	Specification 2: Have two women in his BEQ room while on Battalion Restriction.
Awarded reduction to E-1, forfeiture of $300.00 per month for 2 months, restriction and extra duties for 30 days.  Not appealed.

900713:	Counseled for deficiencies in performance and conduct. [Bn Cmdr Office hours for violation of Art 92 and 134, two counts of each article.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

900905:	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 his failure to conform to the standards of the Marine Corps.

900906:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

900907:	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 the Applicant’s failure to conform to the standards of the Marine Corps.  

900907:	SJA review determined the case sufficient in law and fact.

900911:	GCMCA [CG, MCAGCC] 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 19901015 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.  The NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity 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, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that should have been provided to receive consideration for relief, based on post-service conduct.  The Applicant’s evidence of post-service conduct was found not to mitigate the offense 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 86, unauthorized absence: Article 92, failure to obey a lawful order; Article 112a, illegal use of drugs; Article 134, break restriction.

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.
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