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

ex-Pvt, USMC
Docket No. MD02-00558

Applicant’s Request

The application for discharge review, received 020312, requested that the characterization of service on the discharge be changed to 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 021217.  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.  Granted, I know I made mistakes, others in my unit did worse than me and were never dealt with.  I tried my best, but was always in trouble.  I feel I was treated unfairly.
I had my car break down on the freeway, called in and was still written up for U/A.
Was court martial for bounced checks - I thought I had money in the bank & planned to take care of it.  I got death threats, but all evidence disappeared.

2.  The punishment I got was too severe compared with today's standards.

3. The punishment I got at discharge was too harsh-it was worse than most people got for the same offense.

4.  I tried to serve and wanted to, but just couldn't or wasn't able to.

5.  My discharge was based on many offenses, but they were mostly only minor offenses.

6.  My command abused its authority when it decided to discharge me and decided to give me a bad discharge.

Documentation

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

Copy of DD Form 214 (Member 1)
Job/character reference dated January 10, 2002
Character reference dated January 14, 2002
Character reference dated January 11, 2002
Character reference dated January 15, 2002
Four pages from Applicant's service record
Newspaper article from The Willis News dated November 9, 1994

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		930120 - 930207	COG

Period of Service Under Review:

Date of Enlistment:  930208		Date of Discharge:  960416

Length of Service (years, months, days):

	Active:    03  02  09
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  35

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.7 (9)			Conduct:  3.7 (9)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, AFEM, SASM with 1 Star, SSDR, NUC

Days of Unauthorized Absence:  17

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:

940830:	Counseled for deficiencies in performance and conduct.  [Failure to walk assigned vehicle guard post properly while embarked aboard the USS Ft. McHenry.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950124:	NJP for violation of UCMJ, Article 86: absence from appointed place of duty from 0545-0900, 20 Jan 95, to wit: Range 214, at Camp Pendleton, CA.
Awarded restriction and extra duties for 14 days.  Not appealed.

951006:	Counseled for deficiencies in performance and conduct.  [Absence from appointed place of duty on 2 Oct 95.  SNM did absent himself from his appointed place of duty without proper consent due to misinformation.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

951122:	NJP for violation of UCMJ, Article 86: absence from appointed place of duty on 0700, 6 Nov 95 until 0715, 7 Nov 95 (1 day/surrendered); violation of UCMJ, Article 107:  make a false official statement to BnOOD, Plt Cmdr, 1stSgt and Co Cmdr on 6 Nov 95 and 7 Nov 95. violation of UCMJ, Article 134: wrongfully advise another Marine to make a false official statement to cover him from being UA on 6 Nov 95.
Awarded forfeiture of $478.00 per month for 2 months, extra duties for 45 days, reduction to PFC.  Forfeiture suspended for 6 months.  Not appealed.

951129:	Diagnosed as alcohol dependent.  “Dropped from Level II DAPA/CAAC 3/95.”

960105:	Summary Court-Martial.
Charge I:  Violation of UCMJ, Article 107 (2 specs):
Specification 1:  On 4 Dec 95, make a false official statement to GySgt D_.  Specification 2: On 4 Dec 95, make a false official statement to 1stSgt N_.
Charge II:  Violation of UCMJ, Article 134:
Specification: On 27 Sep 95, utter a bad check in the amount of $177.00.
	Finding: To Charge I and II and the specifications thereunder, guilty.
	Sentence:  Forfeiture of $638.00, confinement for 30 days, reduction to E-1.
	CA action 960105:  Sentence approved and ordered executed.

960130:	Counseled for deficiencies in performance and conduct.  [A pattern of unauthorized absence, lying and financial irresponsibility.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960403:	Summary Court-Martial.
	Charge I:  Violation of the UCMJ, Article 86.
	Specification: Absence from organization from 21 Feb 96 until 8 Mar 96 (16 days).
	Finding:  To Charge I and the specification thereunder, guilty.
	Sentence:  Forfeiture of $538.00, confinement for 30 days.
	CA action 960403:  Sentence approved and ordered executed.

960404:	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 a 6105 counseling entry, two nonjudicial punishments, a summary court-martial dated 5 Jan 96, and a summary court-martial dated 3 Apr 96 evidencing a pattern of misconduct.  

960404:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

960404:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights.

960411:	SJA review determined the case sufficient in law and fact.

960415:	GCMCA [Commanding General, 1st Marine Division (Rein)] 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 960416 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).

Issues 1-6.  The Board reviews each case on its own merits.  The Board found no documentation to support the Applicant’s claim that he was treated unfairly, harassed, or that his command abused its authority.  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 two occasions, two summary court-martials 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 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.  While he may feel that he just was not able to perform the duties expected of a Marine, 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.  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 inequity must have existed during the period of enlistment in question.  No such error or inequity 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 18 Aug 95 until 30 Jan 97. 

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 107, false official statement; and Article 134, utter bad checks.

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