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

 ex-PFC, USMC
Docket No. MD00-00611

Applicant’s Request

The application for discharge review, received 000414, requested that the characterization of service on the discharge be changed to honorable or 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 001026.  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. 6210.2.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. My Other Than Honorable Discharge was inequitable because it was based on 3 incidents over a period of almost 42 (3 years and 6 months) months of service with no other adverse or negative action.  See brief

2.  My discharge was inequitable because a closer examination of the 3 incidents of misconduct discloses that even when taken together, they were insufficient to justify my discharge.  See brief

3.  My discharge should also be reviewed considering the family and personal circumstances.

4.  The Marines did not meet the necessary requirements to establish a pattern of misconduct when using the minor disciplinary infraction basis for discharge.  See brief

5.  The Marine Corps did not meet the requirement that prior to initiating discharge based upon minor disciplinary infraction, the service must not only formally counsel the individual about deficiencies but must also afford the opportunities to overcome those deficiencies.  See brief

Documentation

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

Copy of DD Form 214 (3 copies)
Brief on discharge upgrade issues (3 copies)
Sixty-five pages from applicant's service record

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		950616 - 960121	COG

Period of Service Under Review:

Date of Enlistment:  960122		Date of Discharge:  990709

Length of Service (years, months, days):

	Active:    03  05  18
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  65

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (8)			Conduct:  4.0 (8)

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, MM

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. 6210.2.

Chronological Listing of Significant Service Events:

960911:	NJP for violation of UCMJ, Article 128:
Specification: Assault LCpl by striking him with a closed fist to the back of the head on 1845, 25Aug96.
Awarded forfeiture of $228.00 per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

990204:	Counseled for deficiencies in performance and conduct.  [Absence over leave.  Specifically, your leave expired at 0800 990131.  You elected to turn in your commercial airline ticket at LAX on 990129 into a AMAC flight knowing it would not arrive at HNL airport until 0700 990201.  Your poor judgment and disregard for your leave orders made you absent over leave.  You did not notify your command of your whereabouts until 990201 at 1250 when you returned to MCBH.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990319:	NJP for violation of UCMJ, Article 92:
Specification: Violate MCO P1020.34F para. 1005.7c by wearing a camouflage Gortex jacket in civilian attire.
Violation of UCMJ, Article 128:
Specification: Assault upon a unidentified service member by striking him with a dangerous weapon likely to produce grievous bodily harm on 12Mar99.
Violation of UCMJ, Article 134:
Drunk and disorderly at 2300, 12Mar99.
Awarded forfeiture of $537.00 per month for 2 months, restriction and extra duties for 45 days, reduction to PFC.  Not appealed.

990322:	Counseled for deficiencies in performance and conduct.  [NJP held on 990319 for a violation of Article 92, UCMJ: wearing a camouflage Gortex Jacket with civilian attire; Article 128: UCMJ: aggravated assault; Article 134, UCMJ: drunk and disorderly.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990429:	Substance Abuse Counseling Center Screening: Recommend applicant attend alcohol impact.

990513:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.

990513:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

990XXX:	Applicant waived Administrative Discharge Board.  [Extracted from Commander's letter dated 28 June 1999.]

990513:	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 numerous violations of the UCMJ, to include failing to obey order or regulation, unauthorized absence, assault (two offenses), and drunk and disorderly conduct.  

990608:	SJA review determined the case sufficient in law and fact.

990628:	GCMCA [Commander, Marine Corps Base Hawaii] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 990709 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).

The applicant’s first issue states:  “My Other Than Honorable Discharge was inequitable because it was based on 3 incidents over a period of almost 42 (3 years and 6 months) months of service with no other adverse or negative action.  See brief.”  The NDRB found the applicant’s misconduct occurred over enlistment.  His NJP’s mar his otherwise creditable service.  Relief is not warranted.

The applicant’s second issue states:  “My discharge was inequitable because a closer examination of the 3 incidents of misconduct discloses that even when taken together, they were insufficient to justify my discharge.  See brief.”  The NDRB found this issue without merit.  The applicant had 2 NJP’s in his record, Violations of Articles 128 and 92.  Both offenses are considered serious military offenses and, if tried at court martial, could result in a punitive discharge.  Relief is not warranted.

The applicant’s third issue states:  “My discharge should also be reviewed considering the family and personal circumstances.” The applicant failed to produce any documentation to substantiate this issue.  There is nothing in the record that shows the applicant was not responsible for his actions.  Relief denied.

The applicant’s fourth issue states:  “The Marines did not meet the necessary requirements to establish a pattern of misconduct when using the minor disciplinary infraction basis for discharge.  See brief.”  The NDRB found the applicant was properly discharged in accordance with the regulations (Ref A).  Relief is not warranted.

The applicant’s fifth issue states:  “The Marine Corps did not meet the requirement that prior to initiating discharge based upon minor disciplinary infraction, the service must not only formally counsel the individual about deficiencies but must also afford the opportunities to overcome those deficiencies.  See brief.”  The NDRB found the applicant was discharged in accordance with the regulations, and that he was afforded ample opportunity to correct his documented deficiencies.  Relief is not warranted.

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 95until 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, Articles 92 and 128.

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