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

 ex-Pvt, USMC
Docket No. MD00-00941

Applicant’s Request

The application for discharge review, received 000719, requested that the characterization of service on the discharge be changed to honorable.  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 010201.  After a thorough review of the records, 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 (verbatim)

1.  I would like to have my discharge change to honorable.  I believed to have been discriminated during my enlistment with the MC.  Fact #1 was sent to the brig without having a captain mast.  Fact # put on re-striation for AWOL, (35 days of re striation), 35 day of loss dose show on my DD 214.  I feel that the 35 days that I spent in stockade was not justifiable, I didn't have a cap mast.
Please retrieve police report from Jacksonville NC.  Police called as soon as I was arrested, but the MC never came until 8 days later.

I would like to be reinstated into the MC and resume my military career as intended.

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		970331 - 970518	COG

Period of Service Under Review:

Date of Enlistment:  970519		Date of Discharge:  990630

Length of Service (years, months, days):

	Active:    02  01  12
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  29

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0 (7)			Conduct:  4.0 (7)

Military Decorations:  None

Unit/Campaign/Service Awards:  Letter of Appreciation (2)

Days of Unauthorized Absence:  9

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:

980416:	NJP for violation of UCMJ, Article 86:
Specification: Failed to show up for work at 1200, 13Apr97, failed to show up for PT on 15Apr98 and failed to show up for work at 0730, 16Apr98.
Awarded correctional custody for 30 days, reduction to Pvt.  Reduction suspended for 6 months.  Not appealed.

980416:	Counseled for deficiencies in performance and conduct.  [Unauthorized absence from appointed place of duty.  I should focus on preparing myself to be at my appointed places of duty on time.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980616:	Applicant informed eligible but not recommended for promotion to Lance Corporal for the months July, August, and September 1998, because of recent NJP.

981015:	Counseled for deficiencies in performance and conduct.  [Inappropriate language via E-mail.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

981222:	Counseled for deficiencies in performance and conduct.  [Not being at your appointed place at the prescribed time.  Specifically UA/AWOL from (1) 0730-1030, 2Dec98, (2) 0545-0636, 3Dec98.  Your inability to follow orders.  Specifically Article 92 of the UCMJ disobeying a lawful order.  When told to remain in his BEQ while on bed rest until 0545, 8Dec98.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

981223:	NJP for violation of UCMJ, Article 86:
Specification 1: Unauthorized absence from 0500-0535, 17Dec98
Specification 2: Unauthorized absence from 2000, 981216 from a gear inspection in his BEQ room to be held by Sgt.
Violation of UCMJ, Article 92:
Specification: Disobeyed a direct order from SSgt and Sgt on 16Dec98 by not being in his BEQ room around 2000 for a gear inspection.
Awarded forfeiture of $519.00 per month for 2 months, restriction and extra duties for 45 days, reduction to PFC.  Not appealed.

981223:	Counseled for deficiencies in performance and conduct.  [Your frequent involvement with military authorities as demonstrated by two nonjudicial punishments and five page eleven entries.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990226:	NJP for violation of UCMJ, Article 86 (4 specs):
Specification 1: Absent at 0701, 4Jan99 from restriction muster.
Specification 2: Absent from 0616-0700, 29Jan99.
Specification 3: Absent from 1101-1204, 31Jan99.
Specification 4: Absent from 0931, 8Feb99 until 1204, 17Feb99 (9 days).
Violation Article 92:
Specification: Willfully disobey an order from HQCO 1stSgt, to wit: applicant was apprehended at the front gate at 0325, 28Jan99 while driving on a suspended driver's license.
Awarded forfeiture of $479.00 per month for 1 month, restriction and extra duties for 45 days, reduction to Pvt.  Not appealed.

990331:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 134:
	Specification: Broke restriction on 1Mar99.
	Finding: to Charge I and the specification thereunder, guilty.
	Sentence: Forfeiture of 2/3 pay per month for 1 month, restriction and extra duty for 45 days.
	CA action: Not found in record.
	
990511:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 134:
	Specification: Breaking restriction.
	Findings: to Charge I and specification 1 thereunder, guilty.
	Sentence:  Forfeiture of 2/3 pay per month.
	CA action: Not found in record.

990625:	SJA review determined the case sufficient in law and fact.

990629:	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 minor disciplinary infractions.

Partial discharge package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT 
REGULATION/LAW

Discussion

The applicant was discharged on 990630 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, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (D and E).

In response to the applicant’s issue, the Board found nothing in the records, nor did the applicant provide anything to indicate or to show that there exists an error of fact, law, procedure, or discretion associated with his discharge at the time of its issuance, and that his rights were prejudiced thereby.  The Board cannot determine any reason to change the applicant’s discharge.  Furthermore, there has been no change in policy by the Marine Corps, or higher authority, made expressly retroactive to the type of discharge received by the applicant.  In addition, the Board has no authority to change re-enlistment codes or make recommendations to permit re-entry into the Marine Corps or any other of the Armed Forces.  Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to re-enlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment.  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 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, Article [ e.g., Article 86, unauthorized absence for more than 30 days].

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