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

ex-PFC, USMC
Docket No. MD00-00445

Applicant’s Request

The application for discharge review, received 000222, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance hearing discharge review before the Board in the Washington National Capital Region.  The did not list any representative on the DD Form 293.  Subsequent to the application, the applicant obtained representation by the Disabled American Veterans.

Decision

A personal appearance hearing discharge review was conducted in Washington, D.C. on 010322.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety but did discern inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall change.  The discharge shall change to: GENERAL (UNDER 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 (verbatim)

1.  Upgrade discharge from Other Than Honorable to General Under Honorable Conditions.

Documentation

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

Copies of DD Form 214 (2)
Employment Reference Letter
Character Reference Letters (3)
Copy of Performance Evaluation Summary (5pgs)
Copies from Medical Record (2pgs)
Service Related Documents (19pgs)
Hearing Confirmation Letter from Applicant
       Medical Statements (3pgs)

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		830516 - 830530	COG

Period of Service Under Review:

Date of Enlistment:  830531		Date of Discharge:  850801

Length of Service (years, months, days):

	Active:  02  00  09
	Inactive:  None

Age at Entry:  21			Years Contracted:  4 

Education Level:  12			AFQT:  36

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.72 (7)		Conduct:  3.3(7)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Expert Badge, SSDR, Meritorious Mast 

Days of Unauthorized Absence:  28 

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:

830928:	Counseled for deficiencies in performance and conduct.  [Failure to be at his appointed place of duty, for displaying poor judgement, and for being immature] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

831009:	Apprehended by San Diego Police Dept at 0146, 831009 for violation of California Penal Code, Section 647f, Drunk in public.  No civil action pending.

831026:	 Counseled regarding excessive consumption/abuse of alcohol.

840714:	NJP for violation of UCMJ, Article 89: Disrespect to 2ndLt J.S.W___, by saying to him, "You are always fucking with me and I'm tired of it", violation of UCMJ Article 90: Willfully disobeyed the order of 2ndLt J.S.W_____, to return to the bar to rejoin his buddy, violation of UCMJ Article 91: Willfully disobeyed an MP's order to surrender his AFID card on or about 0100, 840617; violation of Article 95: Resist lawful apprehension on or about 0100, 840617, violation of UCMJ, Article 134: Drunk and disorderly in public on or about 0100, 840617.
	Award:  Forfeiture of $290.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  Not appealed.

841206:	Summary Court Martial
Charge I:  violation of UCMJ, Article 86: UA 840913 to 841011[28days/S], from C Co, 1stBn, 3dMar.
Charge II: violation of the UCMJ, Article 134: (2 Specifications), Spec 1: Incapacitated for the proper performance of his duties on 841019, as a result of previous indulgence in intoxicating liquor; Spec 2: Drunk and disorderly in quarters on 841105.
Sentenced: CHL for 30 days, forfeiture of $300.00 per month for 1 month.
CA (841217) Approved and ordered executed.

850129:	Counseled for deficiencies in performance and conduct.  [Between 841015 and 841204 you have demonstrated a pattern of conduct which is detrimental to the good order and discipline of Marines.  You have been drunk on duty, drunk and disorderly resulting in destruction of government property, and you were UA for 28 days].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

850207:         Counseled for deficiencies in performance and conduct.  [Self discipline, judgement, leadership and giving proper respect to authorities].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

850605:	NJP for violation of UCMJ, Article 91: Willfully disobeyed the order of SSgt F.A. P____, to fall out for platoon formation at 1345, 859414.
	Award:  Forfeiture of $144.00 per month for 1 month (suspended for 2 months ), restriction for 14 days,  Not appealed.

850626:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

850627:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

850627:	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 individual's failure to conform to the standards of the Marine Corps.  This individual has received two NJP's and one summary court-martial during his current enlistment.  He has been counseled concerning his deficiencies as evidenced by service record.  His response has been further violations of the UCMJ.  By his actions and inability to respond to counseling, this individual has demonstrated he has no potential for further honorable service. 

850708:	SJA review determined the case sufficient in law and fact.

850709:	GCMCA [Commanding General] 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 850801 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 but inequitable (D and E).

After a review of the applicant’s service record and other evidence presented to the NDRB, in conjunction with consideration of the factors listed in paragraph 9.3 of reference (a), it was determined that relief is warranted under equitable grounds even though the discharge was determined to have been otherwise equitable and proper at the time of issuance.  Accordingly, the Board voted to upgrade the applicant’s characterization of service to general, under honorable conditions.  The Board determined that while the applicant’s record warrants an upgrade to general, the applicant’s overall record of service does not warrant an honorable discharge.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210 MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16C), Change 2, effective 15 Apr 84 until 28 Jul 87.

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, for willfully disobeying an NCO.

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