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

 ex-Pvt, USMC
Docket No. MD02-01276

Applicant’s Request

The application for discharge review, received 020906, 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 030612.  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/INVOL DIS (BOARD WAIVED) (PATTERN OF MISCONDUCT), authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted (except renumbered)

1.  I would like my discharge upgraded as stated in attached document.  I would like to re-enlist and my current discharge keeps me from doing that.  My statement about why it happened and incidents is an attached document.

Thank you for your time and I hope the board will upgrade.

2.  To whom it may concern:

I would like my discharge status upgraded due to 2 reasons which are as follows:

I feel I could be very beneficial to the military even though my past is a little cloudy I feel that with my experience (Persian gulf war and many other duties) that I deserve another chance to prove my worth. 2-I learned from my bad experiences even though they were my fault and its been almost 8 years since i was discharged and im ready to serve my country once more and I hope the board will upgrade my discharge and let me serve once more.

I would also like to say that i feel the reason i got the first NJP was not my fault A fellow friend and marine had taken me with him on weekend liberty and he was going to bring me back to base.  Then on that Sunday evening he said he was coming to pick me up and never showed up to get me.  So what ended up happening was i got charged with AWOL because of someone’s selfishness and not looking out for a fellow marine.

I received a bad rap for that and ill stick to my guns on that one .1 also ended up losing my e-4 rank which took alot of hard work and time to get.  I myself was disappointed and heartbroken when that happened my CO at the time of promotion was Capt._ with c co 1/2 wpns platoon.  He will tell anyone how hard i worked and how good a marine i was.  It wasn’t till the incident with getting left behind and getting charged with AWOL did things go bad.

In conclusion I like to ask the boards mercy and understanding on this issue and I want the fact known I would really like to serve in the military once again time has changed me and may I say for the better.  Thank you for your time and god bless the United States!

Sincerely

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)		890104 - 890131	COG

Period of Service Under Review:

Date of Enlistment:  890201		Date of Discharge:  941223

Length of Service (years, months, days):

	Active:    05  10  23
	Inactive:  None

Age at Entry:  18			Years Contracted:  6

Education Level:  12			AFQT:  53

Highest Rank:  Cpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0 (15)		Conduct:  3.9 (15)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR with 2 Bronze Stars, JMUC, HSM, SASM with 3 Bronze Stars, NUC, AFEM, CAR, GCM, KLM

Days of Unauthorized Absence:  39

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/INVOL DIS (BOARD WAIVED) (PATTERN OF MISCONDUCT), authority:  MARCORSEPMAN Par. 6210.3.

Chronological Listing of Significant Service Events:

911121:	Counseled for deficiencies in performance and conduct.  [Concerning uttering worthless checks.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920323:	NJP for violation of UCMJ, Article 123A:
Specification: Utter a check of $20.00 and thereafter wrongfully and dishonorably fail to maintain sufficient funds.
Awarded forfeiture of $234.00 per month for 7 days, restriction and extra duties for 14 days.  Forfeiture for 7 days and restriction and extra duty for seven days suspended for 60 days.  Not appealed.

920805:	Counseled for deficiencies in performance and conduct.  [Concerning uttering worthless checks.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920824:	NJP for violation of UCMJ, Article 123A (4 specs):
Specification 1-4: With intent to defraud, made checks to MWR upon the bank of Marine Federal Credit Union in the amounts of $60.00, $50.00, $19.25, $100.00, then knowing he did not have sufficient funds in or credit with such bank for the payment of checks in full upon its presentment on 920613, 920620, 920622 and 920624.
Awarded forfeiture of $600.00 per month for 1 month, restriction and extra duties for 45 days, reduction to PFC.  Forfeiture of $400.00, restriction and extra duty for 15 days, reduction to PFC suspended for 6 months.  Not appealed.

920905:	Counseled for deficiencies in performance and conduct.  [Concerning uttering and passing worthless checks.  Has continually demonstrated a total lack of desire, motivation and drive in putting forth a sincere effort towards improving his financial accounting practices.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940127:	NJP for violation of UCMJ, Article 86:
Specification 1: Unauthorized absence from 0800, 931224 to 2330, 940108 (15 days).
Awarded forfeiture of $541.00 per month for 2 months, correctional custody unit for 29 days.  Forfeiture suspended for 6 months.  Not appealed.

940127:	Counseled for deficiencies in performance and conduct.  [Frequent involvement of a discreditable nature (pattern of misconduct).]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940429:	Vacate suspended forfeiture awarded at CO's NJP dated 940127.

940512:	Applicant to unauthorized absence 0630, 940512.

940513:	Applicant from unauthorized absence 0755, 940513 (1 day/surrendered).

940526:	NJP for violation of UCMJ, Article 86 (3 specs):
Specification 1: Absent from his appointed place of duty on 1300, 940520, to wit: E Co, 2dBn, 4th Mar, formation.
Specification 2: Absent from appointed place of duty on 1300, 940524, to wit: personnel inspection.
Specification 3: Unauthorized absence from 0630, 940512 to 0755, 940513 (1 day/surrendered).
Awarded forfeiture of $258.00 per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

940527:	Applicant to unauthorized absence 0601, 940527.

940531:	Applicant from unauthorized absence 0700, 940531 (4 days/surrendered).

940614:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 86.
	Specification: Unauthorized absence from appointed place of duty from 1630, 940601 to 0630, 940614 (13 days/surrendered).
	Charge II: violation of the UCMJ, Article 134:
	Specification 1: Break company restriction on 1630, 940601, to wit: leaving limits of barracks without authorization.
	Specification 2: Break company restriction on 0920, 940616, to wit: leaving limits of barracks without authorization.
	Finding:  to Charge I and II and specification 1 thereunder, guilty.  Charge II and specification 2, not guilty.
	Sentence: Forfeiture of $513.00, confinement for 30 days, reduced to Pvt.
	CA action 941026: Sentence approved and ordered executed.

940912:	Applicant to unauthorized absence.

940918:	Applicant from unauthorized absence (6 days)

941013:	NJP for violation of UCMJ, Article 86 (2 specs):
Specification 1: Unauthorized absence from company formation on 0700, 940912.
Specification 2: Unauthorized absence from company formation on 0700, 940919.
Awarded forfeiture of $190.00 per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

941109:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 134.
	Specification: Break restriction on 2235, 941013, to wit: arrived back at the barracks at approximately 2330, after being at home.
	Finding:  to Charge I and the specification thereunder, guilty.
	Sentence: Forfeiture of $200.00, confinement for 29 days.
	CA action 941110:  Sentence approved and ordered executed.

941201:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

941201:	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.

941201:	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 two summary courts-martial of 940614 and 941109 and five nonjudicial punishments of 920323, 920824, 940127, 940526, and 941013. 

941213:	SJA review determined the case sufficient in law and fact.

941218:	GCMCA [Commanding General, 2d Marine Division, MarForLant] 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 941223 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 and 2.  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 two summary courts-martial, award of nonjudicial punishment (NJP) on five 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 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.  Despite the positive aspects of the Applicant’s record of service, an upgrade would be inappropriate.  Relief denied.

The NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  Relief is therefore 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 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 P1900.16D), effective 27 Jun 89 until 17 Aug 95.

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 123a, insufficient funds; Article 134, break restriction.

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