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

FOR OFFICIAL USE ONLY

ex-Pvt, USMC
Docket No. MD06-00476

Applicant’s Request

The application for discharge review was received on 20060210.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20061207.  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 by reason of misconduct due to a pattern of misconduct.

The NDRB did note administrative error(s) on the original DD Form 214.  Block 12c, Net Active Service this Period, should read:  “01  10  17.”  Block 28, Narrative Reason for Separation, should read:  “MISCONDUCT.”  The Commandant, Headquarters USMC, Quantico, VA, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

PART I –ISSUES AND DOCUMENTATION

Decisional Issues

Equity:  Command Environment.
Equity:  Post Service. 

Documentation

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

Letter from Applicant, undated
Applicant’s DD Form 214 (Service 2)
Letter of Reference from, D_ R. G_, Mayor, Town of Wartrace, dtd August 4, 2005, unsigned
Letter from Applicant, undated
Resume (3 pgs)
Letter from Applicant, dtd February 22, 2006
Employment Reference ltr from M_ B_, undated
Report of Psychological Evaluation from C_ A_, EdS, Licensed Psychological Examiner, dtd August 10, 2005 (3 pgs)
Letter of Reference from D_ R. G_, Mayor, Town of Wartrace, dtd February 20, 2006, unsigned
Letter of Reference from D_ R. G_, Mayor, Town of Wartrace, dtd August 4, 2005, unsigned
Confirmation of Psychological Evaluation from Tennessee Peace Officer Standards and Training Commission, dtd August 8, 2005
Excerpts from Service Record Book (29 pgs)
Letter from Applicant, dtd February 25, 2006 (2 pgs)
Letter of Recommendation from B_ C. S_, Chief of Police, Wartrace, TN, dtd February 23, 2006

PART II - SUMMARY OF SERVICE

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

	Inactive:  None
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19981203		Date of Discharge:  20010112

Length of Service (years, months, days):

Active:    02  01  10  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  59 days
	Confinement:		  24 days

Age at Entry:  19 

Years Contracted:  4 

Education Level:  GED				AFQT:  35

Highest Rank:  PFC				MOS:  3531

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.9 (5) 			Conduct:  2.9 (6)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  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:

000124:	NJP for violation of UCMJ, Article 86: Did on or about from 0700, 000112 to 0800, 000112 absent himself from his appointed place of duty.
	Award:  Forfeiture of $251.00 pay per month for 1 month (suspended for 3 months), restriction and extra duty for 7 days.  Not appealed.

000601:	Counseling:  Advised of deficiencies in performance and conduct (Art 86: SNM failed to be at his appointed place of duty, Golf Battery Gun Park at 1000, on 000519), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000602:	NJP for violation of UCMJ, Article 86: SNM absent himself from his appointed place of duty on or about 1000, 000519.
	Award:  Forfeiture of $263.00 pay per month for 1 month, restriction and extra duty for 14 days.  Not appealed.

000626:	Applicant to unauthorized absence at 0600.

000801:	Applicant declared deserter.

000824:	Applicant from unauthorized absence.

001122:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 86:
	Specification: In that Private First Class R_ B. S_ (Applicant), U.S. Marine Corps, on active duty, did, on or about 000622, without authority, absent himself from his unit, to wit: Golf Battery, 2d Battalion, 11th Marines, 1st Marine Division, located at Camp Pendleton, CA, and did remain so absent until on or about 000824.
	Charge II: violation of the UCMJ, Article 87:
	Specification: In that Private First Class R_ B. S_ (Applicant), U.S. Marine Corps, on active duty, did, at an unknown location, on or about 000705, through design miss the movement of Golf Battery, 2d Battalion, 11th Marines, 1st Marine Division, with which he was required in the course of duty to move. 
	Finding: to Charges I and II, and the specifications thereunder, guilty.
	Sentence: Forfeiture of $670.00 pay per month for 1 month, reduced to E-1, confinement for 30 days.
	CA action 001205:  Approved and ordered executed.

001122:	Applicant found fit for confinement.  

001122:	To confinement.  [Extracted from DD Form 214]
 
001216:	From confinement.  [Extracted from DD Form 214]

001218:	Counseling:  Advised of being processed for administrative separation due to your documented pattern of misconduct.

001218:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of a pattern of misconduct.  The factual basis for this recommendation was repeated violations of the UCMJ, despite opportunities to correct deficiencies.  Applicant informed the least favorable character of service possible was as under other than honorable conditions.

001218:	Applicant advised of rights and having consulted with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

001219:	Commanding Officer, 2d Battalion, 11th Marines, recommended Applicant’s under other than honorable conditions discharge by reason of pattern of misconduct.  The factual basis for this recommendation was Private S_’s (Applicant) history of repeated violations of the UCMJ.  Commanding Officer’s comments:  “During his enlistment, Private S_ has been formally counseled for multiple unauthorized absences, non-recommended for promotion to Lance Corporal on seven occasions, received nonjudicial punishment twice due to unauthorized absence and finally, was court-martialed after his return from desertion status (a desertion link to missing movement to deploy with his unit).”

001228: 	SJA found the case sufficient in law and fact.

010103:	GCMCA, Commanding General, 1st Marine Division, directed the Applicant's under other than honorable conditions discharge by reason of misconduct due to a pattern of misconduct.

010112:	Applicant found physically qualified for separation.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010112 by reason of misconduct due to a pattern of misconduct (A and B) with a service characterization of under other than honorable conditions.  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 (C and D). 

When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as honorable.  An under other than honorable conditions discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record.  The Applicant’s service was marred by a retention warning and nonjudicial punishment proceedings for violations of Article 86 of the UCMJ.  The Applicant was also convicted at summary court-martial for violations of Articles 86 and 87 of the UCMJ.  Violation of Article 86, for unauthorized absence of more than 30 days, and violation of Article 87 are serious offenses.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant contends that his problems in the Marine Corps can be attributed to “an issue [he] had with a Marine superior.”  While he may feel that this situation was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  Neither the evidence of record nor the documentation provided by the Applicant show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Relief denied.

The Applicant implies that his discharge should be changed because of his post-service conduct.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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 Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided sufficient post-service documentation to consider mitigating the misconduct that resulted in the characterization of discharge.  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.  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 86, unauthorized absence for more than 30 days, or Article 87, missing movement.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 1332.28 and other Decisional Documents by going online at “http://Boards.law.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:

		Secretary of the Navy 	Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023