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Docket No. MD04-00103

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

ex-Pvt, USMC
Docket No. MD04-00103

Applicant’s Request

The application for discharge review was received on 20031017.  The Applicant requested the characterization of service received at the time of discharge be changed to honorable.  The Applicant requested a documentary record review. The Applicant did not list any representative on DD Form 293.  Subsequent to the application, the Applicant, obtained representation by the American Legion.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040812.  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, authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

Issue 1:  “My name is R_ L. W_ (Applicant) and I am requesting a discharge upgrade.  I served from Nov. 5, 1997 to April 2, 2001 – three years, four months and 28 days.  Due to my discharge classification I am not consitered a veteran.  I feel I have served my country long enough to be called a veteran.  Throughout my time in the Marine Corps.  My downfalls have been highlighted, leading to an Administrative Seperation with an other than Honorable discharge.  I feel that my achievements have been ignored.  Throughout the documents I have attached are some certificates of Achievements, statements of my performance as a marine from Peers.  Also certificates of achievements within 10 days of discharge to show that I never gave up, even though the Marine Corps did on myself.  Yes, my actions lead to these consequences.  I just ask the Board to take a look and know that I had done Honorable actions while I served.  I am requesting an Honorable Discharge.  I am 24 years old now and plan on going into Law Enforcement and a Honorable Discharge would help a great deal.  In closure I ask the board to take a look at Documents attached and to also know I will always Respect my God, my Country, my Marine Corps.  Semper Fidelis – Respectfully submitted R_ L. W_ (Applicant)/(SSN).”

Additional issues submitted by Applicant’s counsel/representative (AMERICAN LEGION):

Issue 2:  “Equity Issue:  Based on our review of evidentiary record and on behalf of this former member, we request that the Board consider provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application. 
_______________________________________________________________________

In accordance with 32 C.F.R., section 724.166 and SECNAVINST 5420.174C, enclosure (1), paragraph 1.16, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue, and following statement in supplement to this Applicant’s petition. 

Review of the service record reveals that this former member earned a COC, MM and RMB.  He was awarded NJP on 990317 for VUCMJ, Art. 92; NJP on 991118 for VUCMJ, Art. 92; NJP on 000802 for VUCMJ, Arts. 92, 112 and NJP on 010312 for VUCMJ, Art. 92. Following due process notifications, he was discharged Under Other Than Honorable Conditions due to misconduct as authorized by MARCORSEPMAN, Par. 6210.3.

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because it is too harsh in light of his overall service record.  In support of his contention, he has submitted numerous certificates of completion from various USMC training courses and 8 statements from fellow Marines attesting to his good character in service for the Board’s consideration.

The American Legion’s express purpose in providing this statement, and any other submittals or evidence filed, is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised.  To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 U.S.C., section 1553, and set forth in 32 C.F.R., part 724, and SECNAVINST 5420.174C, enclosure (1).

This case is now respectfully submitted for deliberation and disposition.”

Documentation

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

Meritorious Mast, dtd Thirtieth Dec 1999
MCI Completion Certificate, Math for Marines
MCI Completion Certificate, Automotive Brake Systems
MCI Completion Certificate, Automotive Engine Maintenance and Repair
Completion Certificate, OSHA’s Federal Hazard Communication Training Program
Completion Certificate, Remedial Driving Course
Completion Certificate, Alcohol-Impact
Character Reference, dtd 5 - 8 - 01
Character Reference, dtd 10 - 11 - 2000
Character Reference, dtd 10 - 15 - 2000
Character Reference, dtd 10 - 16 - 2000
Character Reference, dtd 10 - 11 - 2000
Character Reference, dtd 10 - 11 - 2000
Character Reference, dtd 10 - 16 - 2000
Completion of Outpatient Treatment Program, dtd 25 Jun 1999
Letter of Recommendation, dtd April 12, 2001
Course Completion certificated, Retail Loss Prevention
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None			HON
	Inactive: USMCR (J)		970825 - 971104	COG

Period of Service Under Review:

Date of Enlistment:  971105		Date of Discharge:  010402

Length of Service (years, months, days):

	Active:    03  04  28
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  33

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  2.0 (1)			Conduct:  2.0 (1)

Military Decorations:  CertCom, Merit M

Unit/Campaign/Service Awards:  None

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:

980831:	Counseled for deficiencies in performance and conduct.  [Violation of Article 92 of the UCMJ by having a female in his room after TAPS.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990315:	NJP for violation of UCMJ, Article 92:  Failure to obey a lawful order.
Awarded forfeiture of $558.00 per month for 2 months, restriction and extra duties for 45 days.  Forf of $158.00 per month for 2 months susp for 6 mos. Not appealed.

991118:	NJP for violation of UCMJ, Article 92:  Failure to obey a lawful order.
Awarded forfeiture of $275.00 pay for 7 days, restriction and extra duties for 14 days.  Forf of $275.00 pay for 7 days susp for 6 mos.  Not appealed.

991118:	Counseled for deficiencies in performance and conduct.  [6105 retention warning.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000428:	Counseled for deficiencies in performance and conduct.  [Failure to follow Marine Corps weight standards.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000731:	NJP for violation of UCMJ, Article 92:  Failure to obey a lawful order.
Violation of UCMJ, Article 112:  Drunk while on duty.
Awd red to E-2/PFC, forf of $563.00 per month for 2 months, restriction and extra duties for 45 days.  Not appealed.

010309:	NJP for violation of UCMJ, Article 92:  Failure to obey a lawful order.
Awd red to PVT/E-1, forf of $300.00 per month for 2 months, restriction and extra duties for 45 days.  Not appealed.

010315:	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 the Applicant’s “documented pattern of misconduct.”

010315:	Applicant advised of 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.

010315:	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 “consistent display of contempt for authority as evidenced by his appearances in numerous non-judicial punishment proceedings.”

010327:	GCMCA [Commander, 1^st Marine Division (Rein)] 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 20010402 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).

Issues 1 & 2:  In the Applicant’s case, the Board discovered no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. A service characterization of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a member of the U. S. Marine Corps.  The Applicant’s record is devoid of any evidence that he was not responsible for his conduct or that he should not be held accountable for his actions.  The Applicant’s service record is marred by award of non-judicial punishment (NJP) on four separate occasions, to include the appropriate retention and discharge warnings.  The Applicant’s summary of service clearly reflects his disobedience of the orders and directives that regulate good order and discipline in the naval service; thereby, demonstrating he was unsuitable for further service. An upgrade to honorable would be inappropriate.  Relief denied.

The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In the Applicant’s case there was no inequity or impropriety.  The Applicant’s discharge was 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 31 Aug 01. 

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 order or regulation; Article 112, Drunk on duty.

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.