Author: CAP
Last saved by: shirley.robertson
Company: NCPB

Docket No. MD04-00183

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

ex-PVT, USMC
Docket No. MD04-00183

Applicant’s Request

The application for discharge review was received on 20031107.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record review.  The Applicant did not list a representative on his DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040628.  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:

Issue 1:  “I feel I was released from active duty for the wrong reasons.  After 46 months of honorable service. based on my personal problems.  I was “top” of my company in everything:  Uniform inspections, P.f.T’s, pro and cons 4.3, 4.3, and my M.O.S. Artillary weapons tech.  I delt with a lot of stress and others, that were not as incline.  Some were staff N.C.O.s.
I had an accident in our shop.  Blew my leg up, thought I was going to lose it.  Thanks to the Navy Doctors I did not.
But the thing of it all was, nobody got in trouble, I was not charged with anything nor anyone else? That’s when I started disliking the Marine Corps.
I always thought “Semper Fi, always faithful:  God, Country, Corps!  And we never leave anyone behind!
Well I felt left behind.  No rehabilitation for my leg.  No Doctors to talk about my trauma, mentally.
So, I leave it in your hands to help me!”

Documentation

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

Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None			HON
	Inactive: USMCR (J)		870519 - 871116	COG

Period of Service Under Review:

Date of Enlistment:  871117		Date of Discharge:  910826

Length of Service (years, months, days):

	Active:    03  09  10
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  43

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.5 (10)			Conduct:  4.1 (10)

Military Decorations:  MMast

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:

880505:	NJP for violation of UCMJ, Article 134 (2 specs):
Specification 1:  did on or about 880430 consume alcoholic beverages while a minor.
Specification 2:  was on or about 880430 drunk and disorderly in his conduct.
Awd red to PVT/E1, forf of $200.00 per month for 2 months and 30 days restriction and extra duties.  Forf susp for prd of 6 months.  Not appealed.

890620:	NJP for violation of UCMJ, Article 128:  Unlawfully struck LCpl H_ in the head with a beer bottle.
Awd forf of $183.00 per month for 1 month and 2 days restriction.  Forf susp for prd of 6 months.  Not appealed.

900501:	NJP for violation of UCMJ, Article 92:  did on or about 0540, 900415 violate BOP500.2H by having alcoholic beverages in BEQ Room 101, 43700.
Violation of UCMJ, Article 134:  did on or about 0648, 900415 become drunk and disorderly at NRMC emergency room.  
Awd red to PFC/E2, forf of $400.00 per month for 2 months and 45 days restriction and extra duties.  Red to PFC/E2 susp for prd of 6 months.  Not appealed.

900524:	Counseled for deficiencies in performance and conduct.  [Frequent involvement with military authorities.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

900926:	NJP for violation of UCMJ, Article 91 (7 specs):
Specification 1:  did on or about 0035, 900922 disobey a lawful order from the DNCO by failing to go to his room when ordered to do so.
Specification 2:  did on or about 0035, 900922 disobey a lawful order from the DNCO by failing to go to his room when ordered to do so.
Specification 3:  did on or about 0035, 900922 become disrespectful toward the DNCO by stating, “who are you a Sergeant”.
Specification 4:  did on or about 0035, 900922 become disrespectful toward the DNCO by stating “I’m not a f_ing little kid, don’t be trying to treat me like a f_ing little kid.”
Specification 5:  did on or about 0035, 900922 become disrespectful toward the DNCO by stating “I know the Major, we’ll see who’s right, now where’s his f_ing number, give me his f_ing and I’m going to call him and we’ll see who’s right.”
Specification 6:  did on or about 0035, 900922 become disrespectful toward the DNCO by stating “You’re in deep s_ now, wait til morning.”
Specification 7:  did on or about 0035, 900922 become disrespectful toward the DNCO by taking off his shirt and throwing it at the DNCO.
Violation of UCMJ, Article 128:  did on or about 0035, 900922 assault the DNCO by pushing him.
Violation of UCMJ, Article 134:  did on or about 0035, 900922 become drunk and disorderly by becoming loud and belligerent with the DNCO.
Awd red to PVT/E1, forf of $300.00 per month for 2 months and 45 days restriction and extra duties.  Forf $150.00 per month for 2 months and 45 days restriction and extra duties susp for prd of 6 months.  Not appealed.

901025	Reduction to PFC/E2 imposed and sus on 900501 vacated 900926.

910307:	NJP for violation of UCMJ, Article 91:  did on or about 1230, 910226 become disrespectful toward SSgt D_ by stating, “I don’t have to take this s_.”
Violation of UCMJ, Article 92:  did on or about 1230, 910226 disobey a lawful order from SSgt D_ by walking away when ordered to come back. 
Awd forf of $300.00 per month for 2 months and 45 days restriction and extra duties.  Forf $150.00 per month for 2 months and 20 days restriction and extra duties susp for prd of 6 months.  Not appealed.

910314	NJP imposed and sus on 900926 for period of 6 mos is hereby vacated and the punishment is ordered executed.

910422:	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 Applicants five NJPs.

910429:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

910603:	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 “established [pattern of misconduct as evidenced by a 6105 counseling entry dated 910524 fro frequent involvement with military authorities and five NJP’s.”

910709:	Applicant elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

910805:	SJA review determined the case sufficient in law and fact.

910805:	GCMCA [Commanding General, 1^st Force Service Support Group] 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 19910826 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.  While he may feel he had “46 months of honorable service,” the record does not support his assertion.  His service record is marred by the awarding of nonjudicial punishment (NJP) on five separate occasions for underage consumption of alcohol, insubordination, failure to obey orders, assault and drunk and disorderly behavior; thereby, substantiating his misconduct.  It must be noted that most Marines serve with honor and earn their honorable discharges.  In fairness to those Marines, commanders and separation authorities are tasked to ensure the undeserving receive no higher characterization of service than is due.  An upgrade to honorable conditions would be inappropriate.  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 P1900.16D), 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 91 Insubordinate conduct; Article 92 Failure to obey order or regulation; Article 128 Assault and Article 134 Drunk and Disorderly.

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.