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

 ex-Pvt, USMC
Docket No. MD99-00898

Applicant’s Request

The application for discharge review, received 990615, 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 000410.  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 – Pattern of misconduct (admin discharge board required but waived), authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  I fill the discharge was improper because I was just a few minutes late for my formation and when I arrived I forgot to spit out my gum.  At this time I was told to spit it out so I did.  I never tried to be nasty I was just following orders.  The UA's that I've got are pretty much the same thing me being late to my appointed station and being charged with UA.  There was only one time when I was charged UA for being late more than a day and that was when I came home on leave and a very close family member passed.  I called to request 2 more days and they were granted, but when I returned I was charged with an U.A.! 
Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		861219 - 870104	COG

Period of Service Under Review:

Date of Enlistment:  870105		Date of Discharge:  880803

Length of Service (years, months, days):

	Active:  01  06  07
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  39

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.7 (6)		Conduct:  3.8 (6)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Sharpshooter Badge 

Days of Unauthorized Absence:  22 

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Pattern of misconduct (admin discharge board required but waived), authority:  MARCORSEPMAN Par. 6210.3.

Chronological Listing of Significant Service Events:

871201:	NJP for violation of UCMJ, Article 86: (2 Specifications), UA from appointed places of duty, to wit: E Btry PT formation, violation of UCMJ Article 91: Disrespectful to Cpl M_____ by spitting out his gum on the deck in a belligerent manner after Cpl M____questioned him why he is chewing gum while in uniform.
	Award:  Forfeiture of $150 per month for 1 month, restriction (suspended for 6 months) and extra duty for 14 days to run concurrently.  Not appealed.

880201:	Counseled for deficiencies in performance and conduct.  [Misconduct, frequent involvement with military authorities/unauthorized absence and having 2 or more NJP's] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

880209:	NJP for violation of UCMJ, Article 86: UA 0701, 871228 until 1245, 880117 from his unit.
	Award:  Forfeiture of $300 per month for 2 months, restriction and extra duty for 30 days, reduction to E-1.  No appealed.

880209:	Suspension of NJP imposed and suspended on 871110 for a period of 6 months is hereby vacated and the punishment is ordered executed.

880227:	UA 0630, 880227 to 2215, 880228(1day/S)

880306:	UA 0730, 880306 to 2200, 880307(1day/S)
 
880509:	NJP for violation of UCMJ, Article 86: UA from his appointed place of duty, to wit: E Btry, 2dBn, 12thMar on or about 0830, 880225, violation of UCMJ Article 86: Through neglect missed movement on or about 0800, 880226, violation of UCMJ Article 92: Failed to obey Sgt C____ order, to wit: Perform field day for his EPD.
	Award:  Forfeiture of $310 per month for 2 months, restriction and extra duty for 45 days to run concurrently.  Not appealed.

xxxxxx;	DISCHARGE PACKAGE INCOMPLETE.

880705:	SJA review determined the case sufficient in law and fact.

880706:	GCMCA [CG, 1stMarDiv] 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 880803 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).

In the applicant’s issue, the Board found that the applicant had 3 NJP’s (3 charges of UA) and 1 counseling entry within his 18 month service, clearly not warranting an honorable discharge.  The applicant provided no documents to substantiate his allegation that he was denied leave. Relief denied.

The applicant is reminded that he is eligible for a personal appearance hearing within 15 years from the date of his discharge.     

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16C), Change 4, effective 29 Jul 87 until 26 Jun 89.

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 obtain a copy of DoD Directive 1332.28 by writing to:

		DA Military Review Boards Agency
		Management Information and Support Directorate
		Armed Forces Reading Room
		Washington, D.C.  20310-1809

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
		Washington Navy Yard
		720 Kennon St SE Rm 309
		Washington, D.C.  20374-5023