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

 ex-Pvt, USMC
Docket No. MD00-00679

Applicant’s Request

The application for discharge review, received 000502, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant listed the Veterans of Foreign Wars as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 001116.  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

1. Current regulations state that processing for a discharge for Misconduct by reason of Minor Disciplinary Infractions or a Pattern of Misconduct,

"may not be initiated until the member has been counseled formally concerning deficiencies and has been afforded an opportunity to overcome those deficiencies as reflected in appropriate counseling or personnel records."  32 CFR Part 41, Appr. A Part 1 K, 2.

We refer this case to the Board for their careful and compassionate consideration and request the applicant's discharge be reviewed for an Honorable Discharge.

Documentation

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

Character reference dated April 12, 2000
Character reference dated April 13, 2000
Character reference dated April 13, 2000
Character reference dated April 11, 2000
Character reference dated April 12, 2000
Copy of DD Form 214
Three pages of treatment from South Arkansas Chiropractic dated May 12, 2000
Character reference dated April 11, 2000

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		960214 - 960408	COG

Period of Service Under Review:

Date of Enlistment:  960409		Date of Discharge:  970916

Length of Service (years, months, days):

	Active:    01  05  08
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  34

Highest Rank:  LCPL

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.1 (5)			Conduct:  3.3 (5)

Military Decorations:  None

Unit/Campaign/Service Awards:  None 

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:

970212:	Counseled for deficiencies in performance and conduct.  [Conduct unbecoming of a United States Marine by demonstrating a general lack of integrity, discipline and professionalism in actions and communications with staff non-commissioned officers and officers.  During battery field operation 970203-06.  SNM took undue liberties from his duties and willfully misinterpreted his standing orders to fit his personal desires.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. (signed by applicant)

970213:	Counseled for deficiencies in performance and conduct.  [Lack of integrity dependability, initiative, enthusiasm, bearing, unselfishness, knowledge, and loyalty.  Poor work ethic and a near disrespectful attitude toward the chain of command and military courtesies.  Since your arrival in the battery you have continually shown a total inability or unwillingness to conform to Marine Corps standards.  You have lied, hidden from work details, always bordering on violations of the UCMJ.  Continued efforts of your section head and his NCOS to help you have gone unheeded.  Because of your newness to the Marine Corps you were removed from your section and placed in the battery office in an effort to teach you additional skills, provide you with a chance to redeem yourself, and to provide guidance form the most senior NCOS in the battery.  This resulted in unfinished work, and borderline disrespect to a commissioned officer.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. (signed by applicant)

970228:	NJP for violation of UCMJ, Article 86 (2 specs):
Specification: Unauthorized absence 0800-0815, 970226,
Specification 2: Unauthorized absence 1430-1545, 970226.
Violation of UCMJ, Article 89:
Specification: Disrespect towards a superior commissioned officer.
Violation of UCMJ, Article 91:
Specification: Insubordinate conduct towards a noncommissioned officer.
Violation of UCMJ, Article 115:
Specification: Malingering.
Awarded forfeiture of $505.00 per month for 2 months, correctional custody for 30 days, reduced to PFC.  Not appealed.

970724:	NJP for violation of UCMJ, Article 92: Violate a base order by driving aboard MCB while on state suspension on 2233, 970718.
NJP for violation of UCMJ, Article 115:  Did between 970617 and 970717 was seen by SSgt H__ playing basketball while on light duty.
Awarded forfeiture of $450.00 per month for 2 months, restriction and extra duties for 45 days, reduction to Pvt.  Not appealed.

970805:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by your 2 Battalion NJPs and paragraph 6105 service record book entry.

970806:  	Applicant advised of his rights and having elected not to consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

970806:	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 based upon his pattern of misconduct as evidenced by 2 Battalion NJPs.

970813:	Applicant waived administrative discharge board.

970910:	SJA review determined the case sufficient in law and fact.

970915:	GCMCA [Commanding General, 2d Marine Division, II 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 970916 under other than honorable conditions for misconduct due to a pattern of misconduct (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).

In the applicant’s issue, the Board found that he is in error.  He was officially counseled on his deficiencies in performance and conduct on 970212 and 970213.  Following these counseling’s, the applicant received 2 NJP’s within a 5 month period for violations of the UCMJ.  Relief denied.

The following is provided for the applicant’s edification.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (E).  The applicant must be aware that there is no law or regulation which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the service.  Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, may be considered by the NDRB.  The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is highly recommended.

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.  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 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