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

 ex-Pvt, USMC
Docket No. MD00-00250

Applicant’s Request

The application for discharge review, received 991209, 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 000817.  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, authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  I served faithfully in the United States Marine Corps, for 4 years.  I had problems, some my fault, and some were not.  At the end of my enlistment, a friend, I thought, and myself went to the main exchange to go shopping, without my knowledge she was stealing and she was caught.  I was punished and told that if I plead guilty I would be NJP and put on restriction, but I was deceived, I went to the brig for 25 days, shamed in front of my peers, and given an OTH after 4 years of service.  Above is the signature of that Marine who stole the merchandise, and she admits that I had no part of the ordeal, she was given restriction and NJP, but she still received a honorable discharge.  Please give me a chance to receive what I worked 4 years to obtain.  I'm not perfect, but I am honest.  Thank you

Documentation

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

Certificate of Appreciation dated June 28, 1998
Palomar College transcript dated August 13, 1998
Check #1104
Receipt no 25258 and 25204
Copy of promissory note
Letter from MWR dated May 13, 1998
Copy of memorandum dated April 28, 1998
Character reference dated May 26, 1999
Character reference dated October 30, 1999

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		940602 - 941010	COG

Period of Service Under Review:

Date of Enlistment:  941011		Date of Discharge:  980817

Length of Service (years, months, days):

	Active:    03  10  07
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  50

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (6)			Conduct:  3.9 (6)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR

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:

951115:	Applicant informed eligible but not recommended for promotion to LCpl due to insubordinate conduct.

951127:	Counseled for deficiencies in performance and conduct.  [Unauthorized absence, insubordinate conduct, and poor work performance while assigned TAD with Combat Assault Battalion.  You demonstrated poor judgement, conduct to bring discredit upon yourself and the Marine Corps, and a total disregard for Marine Corps regulations by your actions.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960226:	Counseled for deficiencies in performance and conduct.  [Your assault of a dependent daughter.  You demonstrated poor judgement, conduct to bring discredit upon yourself and the Marine Corps, and a total disregard for Marine Corps regulations by your actions.]   Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960918:	Applicant informed eligible but not recommended for promotion to Cpl for the promotion period October 1996 due to deficiencies in physical fitness, not medically related, and general unprofessional conduct and manners expected of a Marine Non-Commissioned Officer.

970409:	Counseled for deficiencies in performance and conduct.  [Uncooperative/belligerent attitude, general disdain for authority, and your overall performance have been substandard and unacceptable.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970428:	Applicant placed on weight control program.

970528:	NJP for violation of UCMJ, Article 91:
Specification: On 1May97, applicant was told to return to her section by SSgt, applicant laughed in his face and shook her head in a disrespectful manner.
Awarded forfeiture of $258.00 per month for 1 month, restriction and extra duties for 7 days.  Forfeiture, restriction and extra duty suspended for 6 months.  Not appealed.

970602:	Applicant informed eligible but not recommended for promotion to Cpl for the promotion period June 1997 because of weight control.

970627:	Applicant informed eligible but not recommended for promotion to Cpl for the promotion period Jul/Aug/Sep 97 because of assigned to weight control program.

970807:	Vacate suspended forfeiture of $258 and restriction and extra duty for 7 days awarded at CO's NJP dated 28May97.

970821:	NJP for violation of UCMJ, Article 91:
Specification: Disrespectfully kept on talking on 6Aug97.
Awarded forfeiture of $505.00 per month for 2 months, restriction and extra duties for 45 days, reduction to PFC.  Forfeiture of $205.00 a month for 2 months, restriction and extra duty for 30 days suspended for 6 months.  Not appealed.

971113:	Applicant informed eligible but not recommended for promotion to Cpl for the promotion period Oct/Nov/Dec 97 because of misconduct which resulted in NJP.

971120:	Counseled for deficiencies in performance and conduct.  [Adherence to barracks regulations.  Your recent situation of having a male person in your living quarters during working hours, without you being present was in violation of barracks regulations.  You have previously been explained the barracks regulations by your roommate who is a Marine NCO.   Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980120:	Applicant informed eligible but not recommended for promotion to Cpl for the promotion period Jan/Feb/Mar 98 because of assigned to weight control program.

980123:	Vacate suspended forfeiture of $205.00 for 2 months and restriction and extra duty for 30 days awarded at CO's NJP dated 21Aug97.

980313:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

980323:  	Applicant advised of her rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

980401:	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 your documented pattern of misconduct. 

980414:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 107:
	Specification: Make an official statement with intent to deceive on 21Jan98, to wit: That the receipt produced from the main exchange was her receipt and was a receipt for clothing the she was accused of stealing.
	Charge II: violation of the UCMJ, Article 121:
	Specification: Steal one Tommy Hilfiger Tan Pants, one Tommy Hilfiger dress shirt and one Adidas sport bra, a total of $148.96 on 18Jan98.
	Finding:  to Charge I and II and the specifications thereunder, guilty.
	Sentence: Confinement for 30 days, reduction to Pvt.
	CA action 980414: Sentence approved and ordered executed.

980605:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to a pattern of misconduct, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

980810:	SJA review determined the case sufficient in law and fact.  [Dated extracted from CG's letter dated 21Sep98.]

980921:	GCMCA [Commanding General, I Marine Expeditionary Force] 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 980817 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).

The Board found that the applicant had 4 counselings, went to 2 NJPs and had a Summary Court martial.  The applicant’s 2 NJPs were considered serious offenses for which she could have been court martialed.  The applicant’s proficiency marks were above average, but the Board found the conduct marks were below average at 3.9.

In the applicant’s issue 1, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts.  With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency. (B, Part IV)   Therefore, no relief will be granted based on this issue.  The applicant's case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  The NDRB found the applicant’s service record devoid of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded.  The applicant is reminded that she remains eligible for a personal appearance hearing provided that an application is received within 15 years from the date of discharge.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 Aug 95 until Present. 

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 107, false official statement].

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