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

ex-Pvt, USMC
Docket No. MD99-01084

Applicant’s Request

The application for discharge review, received 990803, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested 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 000512.  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 – Commission of a serious offense (all other) with admin discharge board and Pattern of Misconduct, authority: MARCORSEPMAN Par. 6210.6 & 6305.2D.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

Prior to the documentary discharge review, the applicant introduced no issues as block 8 on the DD Form 293 is blank.

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:    None
	Inactive:  USMCR(J)		900814 - 901008	COG

Period of Service Under Review:

Date of Enlistment:  901009		Date of Discharge:  940426

Length of Service (years, months, days):

	Active:    03  06  18 (Doesn't exclude lost time - UA and confinement)
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  47

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  2.8 (7)		Conduct:  2.2 (8)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, Rifle Sharpshooter Marksmanship Badge

Days of Unauthorized Absence:  702 (includes confinement time)

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct-Commission of a serious offense (all other) with admin discharge board and Pattern of Misconduct, authority:  MARCORSEPMAN Par. 6210.6 & 6305.2D.

Chronological Listing of Significant Service Events:

911004:	Unauthorized absence since 0801, 911004.

911103:	Declared a deserter this date.

911210:	Apprehended by Tangipahoa Parish Sheriff Dept., Amite, LA and delivered to military authorities on 1735, 12DEC91.

920221:	Special Court-Martial
Charge I: violation of UCMJ, Article 86:  on or about 04OCT91, without authority, absent himself from his organization, to wit:  lst Battalion, 3d Marines, lst MEB, located on board MCAS, Kaneohe Bay, HI, and did remain so absent until about on or about 10Dec91, when he was returned to military control after his apprehension by civil authorities (66 days).
Findings:  to Charge I - Guilty
Sentence:  Confinement at hard labor for 90 days, forfeiture of $100.00 per month for three months, and reduction to E-2.
CA 920324:  Sentence approved and ordered executed.

920416:	Counseled for deficiencies in performance and conduct (UA resulting in SPCM).  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920324:	Unauthorized absence since 0700, 920324.

920326:	Apprehended and returned to military authority.

920612:	Summary Court-Martial
	Charge I: violation of UCMJ Article 86:  about 24MAR92, without authority, fail to go at the time prescribed to his appointed place of duty and did remain so absent until on or about 26MAR92 (2 days).
	Charge II: violation of UCMJ Article 91:  about 26MAR92, treat with contempt and was disrespectful in deportment toward lstSgt F_, USMC, by displaying provoking body gestures, rolling his eyes, and not assuming the position of attention.
	Charge III: violation of UCMJ Article 134: about 26MAR92, wrongfully possesses another's AFID, to wit: that of LCpl R_, which he then well knew the same to unauthorized.
	Findings:   to Charge I - Guilty, 
     to Charge II – Guilty to Charge III - Guilty
Sentence:  Confinement hard labor for 30 days, forfeiture of $200.00 pay per month for 1 month, reduction to E-1.
CA 920615:  Sentence approved and ordered executed.

920612:	To confinement

920625:	Returned to duty status.

920921:	NJP for violation of UCMJ, Article 86: unauthorized absence 0730, 09SEP92 - 10SEP92.
Awarded forfeiture of $100.00 per month for 1 month.  Not appealed.

920922:	Counseled for deficiencies in performance and conduct (frequent involvement with military authority - UA that resulted in NJP) Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

921120:	Counseled for deficiencies in performance and conduct (pattern of misconduct as you received a NJP, SPCM, SCM) Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  Member refused to sign.

921120:	Arrested and Confined by Civil Authority (State of Hawaii Police Dept) for kidnapping and sexual assault.

921211:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and the commission of a serious offense.  The primary basis for separation shall be by reason of misconduct due to the commission of a serious offense.  The basis for this recommendation is derogatory counseling entries, one nonjudicial punishment, one summary court-martial conviction, one special court-martial conviction, and civilian charges of kidnapping and sexual assault.

921211:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

930113:	CO, 3d Marines (REIN) recommended approval of discharge under other than honorable conditions by reasons of misconduct due to a pattern of misconduct and the commission of serious offense.  The primary basis for separation shall be by reason of misconduct due to the commission of a serious offense.

930506:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had been involved in misconduct due to the commission of a serious offense and misconduct due to a pattern of misconduct, that one or both of the findings of misconduct warranted separation, and recommended discharge under other than honorable conditions.

930513:	SJA reviewed and is sufficient in law and fact.

930517:	GCMCA [Commander, 1st Marine Expeditionary Brigade] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct and the commission of a serious offense.  The primary basis for separation shall be by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 940426 under other than honorable conditions for misconduct due to the commission of a serious offense and due to pattern of misconduct, with the primary basis for separation as misconduct due to the commission of a serious offense (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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).

The applicant introduced no decisional issues for consideration by the Board.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210, Misconduct The Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 27 Jun 89 until 17 Aug 95. 

B.  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.  

C.  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.

D.  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 Street SE Rm 309
		Washington, D.C.  20374-5023