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

 ex-PFC, USMC
Docket No. MD02-00955

Applicant’s Request

The application for discharge review, received 020618, 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 030331.  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. 6210.2.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

Prior to the documentary discharge review, the Applicant introduced no issues as Block 8 on the DD Form 293 is blank. 

Documentation

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

Applicant's DD Form 214
Letter from Director, Mental Health/Social Services dated March 2, 2001
Letter from Branch President, The Church of Jesus Christ of Latter Day Saints dated February 20, 2001
Character reference dated February 20, 2001

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		961121 - 970112	COG

Period of Service Under Review:

Date of Enlistment:  970113		Date of Discharge:  990505

Length of Service (years, months, days):

	Active:    02  03  23
	Inactive:  None

Age at Entry:  23			Years Contracted:  4

Education Level:  12			AFQT:  43

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (5)			Conduct:  3.5 (5)

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR

Days of Unauthorized Absence:  25

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:

980313:	NJP for violation of UCMJ, Article 86:
Specification: Absent himself from unit on 0731, 980203 until 0233, 980301 (25 days/surrendered).
Awarded forfeiture of $519.00 per month for 2 months, restriction for 60 days, reduction to PFC.  Forfeiture suspended for 6 months.  Not appealed.

980320:	Vacate suspended forfeiture of $150.00 awarded at CO's NJP dated 980313.

980423:	Vacate suspended forfeiture of $444.00 awarded at CO's NJP dated 980313.

980626:	Counseled for deficiencies in performance and conduct.  [Violation UCMJ for unauthorized absence and failure to obey lawful general order (two specifications).]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980701:	NJP for violation of UCMJ, Article 86:
Specification: Absent himself from appointed place of duty on 0530, 980617, to wit: PT formation.
Violation of UCMJ, Article 92 (2 specs):
Specification 1: Violate a lawful general order on 0700, 980617, to wit:  wrongfully having visitors of the opposite sex in his room after 2200 visiting hours.
Specification 2: Failed to obey a lawful order issued by GySgt, to report to work immediately.
Awarded forfeiture of $519.00 per month for 2 months, restriction and extra duties for 45 days.  Not appealed.

990211:	NJP for violation of UCMJ, Article 128:
Specification: Assault on 0248, 981101, to wit: pushed, grabbed, and struck wife in the face with a closed fist.
Awarded forfeiture of $479.00 per month for 2 months, restriction and extra duties for 45 days, reduction to Pvt.  Forfeiture, restriction and reduction suspended for 6 months.  Not appealed.

990413:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.  The factual basis for this recommendation was his documented misconduct due to minor disciplinary infractions. 

990419:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.

990419:	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.

990514:	SJA review determined the case sufficient in law and fact.

990514:	GCMCA [Commander, 1st Force Service Support Group] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 990505 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, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (D and E).

The Applicant introduced no decisional issues for consideration by the Board.  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 an adverse counseling entry on another occasion.  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.  An upgrade would be inappropriate.  Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity is evident 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 128, assault.

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