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

 ex-PVT, USMC
Docket No. MD01-00764

Applicant’s Request

The application for discharge review, received 010509, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to good of service.  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 011218.  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 and narrative reason 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.  While on active duty I was punished for my mistakes and always accepted responsibility for my actions, so I see no further need to be punished any longer.  I did not commit any crime before, during, or after my time of service and I always worked hard as stated by my OIC and NCOIC in there review of my service.  I had personal problems at home that affected my ability to serve, such as illness and death within my family.  I was told I needed anger management classes, but was never afforded an opportunity to attend such classes.  My command did not use ever method at their disposal to mold me into a productive Marine and would not deal with my issues as I told them.  They would always refer me to the Chaplain even though I informed them that I do not practice Christianity and did not feel comfortable with him.  I was told that was my choice and nothing else could be done.  I served onboard USS Enterprise in operations Desert Fox, Deliberate Forge, and Southern Watch and was rewarded two meritorious mast and two NATO medals for actions while deployed.  My two NJP's occurred while deployed and as I was dealing with a new marriage and my first born being delivered while overseas, along with my aunt dying of cancer and my mother being homeless.  I did not get into any further trouble after returning stateside.  As a civilian, I have registered to vote and voted and have not been in any trouble.

Documentation

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

Letter from Applicant's Wife

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		960611 - 961230	COG

Period of Service Under Review:

Date of Enlistment:  961231		Date of Discharge:  990929

Length of Service (years, months, days):

	Active:  02  08  28
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  74

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (5)		Conduct:  4.2 (6)

Military Decorations:  None

Unit/Campaign/Service Awards:  Meritorious Mast, SSDR, AFEM, NATO 

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:

980121:	Counseled for deficiencies in performance and conduct.  [Disrespectful conduct toward an NCO and reluctant obedience to orders].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980718:	Counseled for deficiencies in performance and conduct.  [Failure to be at appointed place of duty at prescribed time].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980926:	Counseled for deficiencies in performance and conduct.  [Disrespect towards NCO, communicating a threat to an NCO and failure to follow a lawful order given by an NCO].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

981027:	Counseled for deficiencies in performance and conduct.  [Disrespect to an NCO].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990101:	NJP for violation of UCMJ, Article 91: Disrespectful language towards AO2 W_____, a petty officer who was then in the execution of his office, by saying to him "I guess we are in the God damn Navy now" and other profanities to that affect.
	Award:  Confinement for 3 days Bread & Water, reduction to E-2 (suspended for 6 months).  No indication of appeal in the record.

990111:	Counseled for deficiencies in performance and conduct.  [Inability to honor debt created by him.  His financial instability has resulted in two dishonored checks in the amount of $200.00 at the ships disbursing office aboard USS ENTERPRISE]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990601:	NJP imposed and suspended on 990101 for a period of 6 months is hereby vacated and the punishment is ordered executed.

990607:	Counseled for deficiencies in performance and conduct.  [Violation of Article 91 for disrespect to an NCO and Article 92 disobeying an order from an NCO]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990607:	NJP for violation of UCMJ, Article 91: Did on about 990502 use disrespectful profanities towards Cpl E____ after being directed to stop cursing; violation of UCMJ Article 92: Did on about 990502 disobey the lawful order given by Cpl E____.
	Award:  Extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

990804:	Commanding Officer, Marine Fighter Attack Squadron 312 recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  The factual basis for this recommendation was your discreditable involvement with authorities during this enlistment as evidenced by your 2 non-judicial punishments, statements of your supervisors, and other adverse entries contained on page 11 of your service record book.  

990804:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

990805:  	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.

990823:	Commanding Officer, Marine Aircraft Group 31 concurring with the recommendation of Commanding Officer, Marine Fighter Attack Squadron 312 to discharge applicant under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

990921:	SJA review determined the case sufficient in law and fact [Extracted from CO's message dtd 990921].

990921:	GCMCA [Commander, 2d Marine Aircraft Wing] 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 990929 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 and equitable (D and E).

Issue 1.  When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as honorable.  Under other than honorable conditions is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The applicant’s service was marred by award of nonjudicial punishment (NJP) for offenses triable by court-martial on two occasions and adverse counseling entries on other occasions.  The applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful disobedience of the orders and directives which regulate good order and discipline in naval service, and falls short of that required for an honorable characterization of service.  An upgrade to honorable would be inappropriate.  It must be noted that most Marines serve honorably and well and therefore earn honorable discharges.   In fairness to those Marines, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due.  The present narrative reason for separation most clearly describes the cause for the applicant’s administrative separation.  Relief denied.

The Board found that the applicant’s age, education level, and test scores qualified him for enlistment.  While he may feel that his personal problems at the time were factors that contributed to his actions, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service.  The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

The NDRB is authorized to consider 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.  However, there is no law or regulation that 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 be found to have existed during the period of enlistment in question.  No such error or injustice is evident in the applicant’s service record.  The applicant is reminded that he remains eligible for a personal appearance hearing provided that an application is received within 15 years from the date of discharge.  Representation at a personal hearing is not mandatory, but is strongly recommended.  This representation need not be a lawyer, but may be any person of stature and good standing in the community including the various veterans’ organization.

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.  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, disrespect to an NCO; and Article 92, failure to obey a lawful order.

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 “afls10.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