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

ex-PVT, USMC
Docket No. MD02-00462

Applicant’s Request

The application for discharge review, received 020225, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a personal appearance hearing discharge review before a traveling panel closest to Euless, TX.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter to the Applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel, all hearings are held in the Washington, D.C. Area.  The Naval Discharge Review Board (NDRB) also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 021105.  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, as submitted

1.  The reason for the attempt to upgrade is because on the day of my EAS my command at Lima Co. 3/5 had decided to do a rush process on not granting me an Honorable Discharge.  When 1630 came around and it was time for me to leave I was unable to due to my discharge not being complete.  When I got my papers it nearly 1800 and I was given an OTH for a discharge.

Documentation

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

Employment Reference Letter from Manager-Reservation Sales & Services, D_ E_
Reservations Sales Performance Appraisal from 1/22/01 to 7/22/01
Reservations Sales Performance Appraisal from 7/22/01 to 1/22/02

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		950227 - 950915	COG

Period of Service Under Review:

Date of Enlistment:  950916		Date of Discharge:  990915

Length of Service (years, months, days):

	Active:    03  10  09 (Doesn’t include lost/confinement time)
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  51

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.7 (12)			Conduct:  3.3 (12)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Marksman Badge, NDSM, SSDR(w/1*)

Days of Unauthorized Absence:  5

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:

980731:	NJP for violation of UCMJ, Article 92: Having knowledge of a lawful order issued by the Battalion Commander to maintain a liberty partner when off base, an order in which it was his duty to obey, did on or about 2400, 980717, fail to obey the same by abandoning his liberty partner and not returning to base alone, violation of UCMJ, Article 89: In that SNM, at the Consolidated Administration office aboard Camp Hansen, on or about 0800, 980717, did treat with disrespect and deportment toward Warrant Officer C_, then known by SNM to be a Superior Warrant Officer, by using threatening and non-cooperative tone of voice, refusing to respond to question with the proper respect, and refusing to say "sir."
	Award:  Forfeiture of $265.00 pay per month for 1 month, restriction and for 14 days.  No indication of appeal in the record.

980918:	Counseled for deficiencies in performance and conduct.  [Violating his liberty risk restrictions, as signed by the Battalion Commander and being UA from his place of duty on 980912 due to drunkenness.  SNM overindulged in alcoholic beverages on the night of 980911, violating his liberty risk program and was unable to perform his duties the next morning.  When his Plt Sgt tried to get him out of the rack, he ran into the head and locked himself in.  SNM's performance has steadily declined in the past six months and he is no longer an asset to the Marine Corps.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980921:	NJP for violation of UCMJ, Article 92: Having knowledge of a lawful order issued by the Battalion Commander and signed by SNM, to refrain from alcoholic beverages, and order in which it was his duty to obey, did, on board Camp Hansen, on or about the evening of 980911, fail to obey the same by wrongfully drinking alcoholic beverages in violation of his liberty risk program, violation of UCMJ, Article 92: In that SNM, having knowledge of all lawful orders issued by his Platoon Sergeant to fall out for PT, an order in which it was his duty to obey, did, in the Lima Company Barracks, aboard Camp Hansen, on or about 0630, 980912, fail to obey the same by refusing to fall out and locking himself in the head, violation of UCMJ, Article 134: In that SNM, was, at Camp Hansen, Lima Company Barracks, on or about 0630, 980912, as a result of wrongfully overindulging in intoxicating liquor incapacitated for the proper performance of his duties.
	Award:  Forfeiture of $519.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

981109:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 86: Unauthorized absence from restricted muster.  Charge II: violation of the UCMJ, Article 86: Unauthorized absence from restricted muster.  Charge III: violation of the UCMJ, Article 86: Unauthorized absence from restricted muster.
	Finding:  to Charge I, II, III and the specification thereunder, guilty.
	Sentence:  Confinement for 30 days, forfeiture of $611.00 pay per month for 1 month, reduction to E-1.
	CA action 981123:  Sentence approved and ordered executed.

981218:	Applicant diagnosed as alcohol dependent.
 
990113:	NJP for violation of UCMJ, Article 86: Did on or about 0615, 981230, without authority absent himself from his appointed place of duty which he was required to be, to wit: Lima Company, Camp Pendleton, and did remain so absent until on or about 0700, 990104.
Awarded forfeiture of $223.00 pay per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

990517:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 86: Unauthorized absence from Company Muster.  Charge II: violation of the UCMJ, Article 91: Insubordinate conduct.  Charge III: violation of the UCMJ, Article 111: Drunken or reckless driving.
	Finding:  to Charge I, II, III and the specification thereunder, guilty.
	Sentence:  Confinement for 30 days, forfeiture of $639.00 pay per month for 1 month (suspended).
	CA action 990517:  Sentence approved and ordered executed.

990517:	To confinement.

990610:	From confinement.

990913:	GCMCA [Commander, 1st Marine Division] 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 990915 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.  The Board found that the Applicant was not at his EAS on the day of his discharge.  Due to his lost time from confinement and unauthorized absence, the Applicant had 52 days remaining to serve to complete a four year enlistment.  A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a Marine.  The Applicant’s service was marred by award of nonjudicial punishment (NJP) on three occasions and two summary court-martials.  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 the naval service, and falls short of that required for an honorable characterization of service.  An upgrade would be inappropriate.  Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the Applicant’s enlistment.  Additionally, 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 civilian life, subsequent to leaving the service.  Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 31 Jan 97 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 86, unauthorized absence; Article 92, failure to obey a lawful general order; Article 111, drunken driving; Article 134, incapacitated for duty.

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