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

ex-Pvt, USMC
Docket No. MD00-00597

Applicant’s Request

The application for discharge review, received 000406, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance hearing before the board in the Washington National Capitol Region.  The applicant did not list any representative on the DD Form 293.  Subsequent to the application the applicant obtained representation from Veterans of Foreign Wars.

Decision

A personal appearance hearing discharge review was conducted in Washington, D.C. on 010327.  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 – Minor disciplinary infractions (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.2.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

The applicant requested an upgrade to discharge based on post-service conduct.

Documentation

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

Previous case folder with documents/records from documentary review of November 29, 1999.

Additional documentation:

Grade Report Jefferson Community College, Fall 2000
Letter of Reference from Mr. T_____dtd 25 Oct 00
Letter of Reference from Dr. C______, dtd 15 Dec 00
Certificate of completion, Peace Officer Course dtd 19 Jan 01

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		911009 - 920426	COG

Period of Service Under Review:

Date of Enlistment:  920427		Date of Discharge:  940627

Length of Service (years, months, days):

	Active:    02  02  01
	Inactive:  None

Age at Entry:  27			Years Contracted:  4

Education Level:  12			AFQT:  35

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.4 (6)			Conduct:  2.8 (6)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, AFEM

Days of Unauthorized Absence:  20 

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct-Minor disciplinary infractions (administrative discharge board required but waived), authority:  MARCORSEPMAN Par. 6210.2.

Chronological Listing of Significant Service Events:

920911:	Counseled for deficiencies in performance and conduct.  [Failure to maintain sufficient funds in checking account to cover checks #105, for $85.62 and #106, for #38.00.  Failure to follow written and verbal directions, not to consume alcoholic beverages while assigned to SOI]   Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

921116:	NJP for violation of UCMJ, Article 90:
Specification: Willfully disobeyed Captain's order not to rent or drive a vehicle on 1831, 921002.
Violation of UCMJ, Article 92:
Specification: Violate Scol0 P1500.3G, by renting a car on 1831, 921002.
Violation of UCMJ, Article 123a:
Specification: With intent to defraud, made a check to Fisherman's Wharf in the amount of $58.51 and to Old Pro's Table on 921010 in the amount of $67.62, knowing he did not have sufficient funds in the bank for payment.
Violation of UCMJ, Article 86:
Specification: Unauthorized absence from 1200, 921108 to 0700, 921112 (3 days/surrendered).
Awarded forfeiture of $392.00 per month for 2 months, reduction to Pvt.  Not appealed.

930726:	NJP for violation of UCMJ, Article 86:
Specification: Unauthorized absence from 0531, 930614 to 0530, 930701 (17 days/surrendered).
Violation of UCMJ, Article 134:
Specification: Incapacitated for the proper performance of duty on 0530, 930707, due to wrongful previous overindulgence in intoxicating liquor or drugs.
Awarded forfeiture of $407.00 per month for 1 month, restriction and extra duties for 14 days, reduction to Pvt.  Not appealed.

931223:	Counseled for deficiencies in performance and conduct.  [Have had several checks returned for insufficient funds on board the USS SHREVEPORT.  When questioned you stated you thought you had the funds in your account.  This is due to poor financial management and irresponsibility.]   Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940103:	NJP for violation of UCMJ, Article 92:
Specification: Violate a lawful order on 931222, to wit: consuming alcohol when permitted to leave the ship to assist the purchase of ship equipment.
Awarded forfeiture of $190.00 per month for 1 month, restriction and extra duties for 14 days.  Forfeiture of $95.00 suspended for 6 months.

940209:	Vacate forfeiture of $95.00 awarded at CO's NJP dated 940103.

940209:	NJP for violation of UCMJ, Article 92:
Specification: Failure to obey lawful order on 1930, 940112, to wit: perform extra duty.
Awarded forfeiture of $456.00 per month for 2 months, restriction and extra duties for 45 days.  Forfeiture of $416.00 for 2 months suspended for 6 months.

940303:	Competency for duty examination: Competent to perform duty.

940308:	Vacate forfeiture of $416.00 for 2 months awarded at CO's NJP dated 940209.

940311:	NJP for violation of UCMJ, Article 91:
Specification: Treat with contempt and was disrespectful in language and deportment toward Corporal on 0300, 940211, to wit: by saying "Fuck you mother fucker, fuck off your rank don't mean shit to me, I wipe my ass of you".
Violation of UCMJ, Article 134 (2 specs)
Specification 1: Break restriction on 2200, 940210.
Specification 2: Disorderly conduct, drunkenness on 0300, 940211.
Awarded forfeiture of $416.00 per month for 2 months, restriction and extra duties for 45 days.  Forfeiture of $416.00 for 2 months suspended for 6 months.  Not appealed.

940502:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions as evidenced by five nonjudicial punishments conducted on 16 November 1992, 26 July 1993, 3 January 1994, 9 February 1994 and 11 March 1994.

940502:  	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.

940502:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.  The factual basis for this recommendation was five nonjudicial punishments conducted on 16 November 1992, 26 July 1993, 3 January 1994, 9 February 1994 and 11 March 1994.  

940605:	SJA review determined the case sufficient in law and fact.

940613:	GCMCA [Commanding General, 2d Marine Division, MarForLant] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.

991129:	NDRB documentary record review Docket Number MD99-00291 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 940627 under other than honorable conditions for misconduct due to minor disciplinary infractions (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 1 of post-service conduct, the Board found that the applicant’s post service conduct was not sufficient to warrant an upgrade to discharge.  The applicant was brought to CO’s NJP on 5 separate occasions during his abbreviated 2 years and 2 months of service in the U.S. Marine Corps.  Several of the applicant’s offenses were court martiable offenses.  Additionally the applicant had several counselings, vacation of suspensions and below average evaluation marks.  The applicant was discharged from the service in 1994 and has had a very limited amount of community service and involvement with his community to warrant an upgrade to discharge characterization.  Therefore, no relief will be granted.

Pertinent Regulation/Law (at time of discharge)

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

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 violations of the UCMJ, Article 90, willfully disobeying a lawful order of superior commissioned officer, Article 92, failure to obey a written order, Article 91, contempt, disrespect toward superior noncommissioned officer.

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