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

 ex-Pvt, USMC
Docket No. MD02-01317

Applicant’s Request

The application for discharge review, received 020910, requested that the characterization of service on the discharge be changed to honorable.  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 030722.  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 discharge was inequitable because it was the result of an isolated incident in 39 months of service which included into 3 NJP's in 4 months to justify the pattern on misconduct characterization.

2.  The discharge was improper because I had requested to be released from active duty months prior to the discharge and the incident leading to the characterization received.

3.  The discharge was improper because my signature was forged on NAVMC 10132 (Document 8, Pages 1 and 2).

4.  The discharge was improper because I submitted a written complaint to the DoD hotline, reporting an improper mental health referral, numerous MPO's (Military Protection Orders), and mismanagement and abuse of authority by superior officers  (Document 7).

5.  The discharge was improper because I was denied access to my E-mail account at HQBN HQ USMC, HH after sending a complaint via the internet to the DoD IG.  I am protected by the Military Whistleblower Protection Act in section 531 of the FY 95 Defense Authorization Act Pub. L, 103-337, October 5, 1994 from the restrictions that were place upon me.

6.  The discharge was inequitable because of the characterization / RE code (Reenlistment Code) received, since the events of September 11 2001, I am unable to enlist in any branch of the U.S. Armed Forces, active duty or reserve.

Documentation

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

Marine Corps Request Mast Application, NAVMC 11296, dated June 20, 2000 (1 page)
Marine Corps Request Mast Application, NAVMC 11296, dated July 7, 2000 (4 page)
Letter from Congressman A_ R_ W_, dated July 17, 2000 (1 page)
Marine Corps Request Mast Application, NAVMC 11296, dated July 14, 2000 (1 page)
Letter from Congressman S_ H_ H_, dated July 24, 2000 (1 page)
Marine Corps Request Mast Application, NAVMC 11296, dated August 16, 2000 (1 page)
Fraud, Waste, and Abuse Complaint (3 pages)
Unit Punishment Book (5812), NAVMC 10132, dated September 18, 2000 (3 pages)
Letter from the Department of Defense, Inspector General, dated September 26, 2000 (1 page)
Applicant's DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		960410 - 970217	COG

Period of Service Under Review:

Date of Enlistment:  970218		Date of Discharge:  001018

Length of Service (years, months, days):

	Active:    03  08  01
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  36

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (9)			Conduct:  4.1 (9)

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  2

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:

970825:	NJP for violation of UCMJ, Article 86:
Specification: Failed to go at the time prescribed for duty at 0800, 970824, Building M-435.
Awarded forfeiture of $250.00 per month for 2 months, restriction for 30 days.  Forfeiture of $100.00 per month for 2 months suspended for 6 months.  Not appealed.

970825:	Counseled for deficiencies in performance and conduct.  [Violation of Marine Corps regulation by failing to go at the time prescribed for duty at Building M-435 0800, 970824.  This lackadaisical attitude will not be tolerated…  This type of behavior is unacceptable.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980104:	Counseled concerning the following:  "IAW MARCORSEPMAN, Appendix J, Reenl Code RE-3C assigned this date.  Reason: PCSO orig in response to HUMS request."

000605:	NJP for violation of UCMJ, Article 89:
Specification: Disrespectful in tone towards Captain D_ during a telephone conversation, and by not properly addressing him as a commissioned officer on 000510.
Violation of UCMJ, Article 91:
Specification: Disrespectful in language towards First Sergeant on 000508, by saying to him "this is bullshit."
Violation of UCMJ, Article 92:
Specification: Failed to obey a lawful order issued by First Sergeant, to wit: to get back in his office on 000508.
Awarded forfeiture of $200.00 per month for 2 months, extra duties for 45 days, reduction to PFC.  Extra duty for 45 days suspended for 2 months.  Not appealed.

000901:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

000908:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

000918:	NJP for violation of UCMJ, Article 86 (2 specs):
Specification 1: Absence from appointed place of duty on 0731, 000821 to 1225, 000823 (2 days).
Specification 2: Absence from appointed place of duty on 1301-1400, 000829.
Violation of UCMJ, Article 91:
Specification: Disrespectful in deportment towards First Sergeant, by throwing military protective order (MPO) in the trash can in front of First Sergeant after he handed the MPO to her on 000815.
Awarded forfeiture of $500.00 per month for 2 months, restriction and extra duty for 45 days, reduction to Pvt.  Forfeiture of $250.00 pay per month for 2 months suspended for 2 months and restriction for 45 days suspended for 3 months.  Not appealed.

000918:	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 misconduct documented by a 6105 counseling and two nonjudicial punishments conducted on 25 August 997 and 5 June 2000.  

000926:	Applicant submitted a conditional waiver, to waive right to an administrative separation board and request expeditious separation.

001004:	SJA review determined the case sufficient in law and fact.

001004:	GCMCA [Commander, Marine Corps Base, Quantico, VA] 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 001018 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.  A Marine may be separated when there is a pattern of misconduct which include two or more discreditable involvements with civil and/or military authorities or two or more instances of conduct prejudicial to good order and discipline within one enlistment.  Such a pattern may include both minor and more serious infractions.  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.  The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her 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.

Issue 2.  The Board found no indication that the Applicant was inequitably or improperly denied an early release from her enlistment contract prior to her processing for administrative separation for misconduct.  Relief denied.

Issue 3.  The Board found nothing to corroborate the Applicant’s allegation that the NJP she received on 000918 is improper because her signature on the NAVMC 10132 is not her own.  Relief denied.

Issues 4 and 5.  The Applicant’s unsubstantiated complaints do not mitigate her own misconduct.  The reference cited by the Applicant concerning “whistleblower” protection does not invalidate her administrative separation for misconduct.  The record is devoid of evidence that the Applicant was not responsible for her conduct or that she should not be held accountable for her actions.  Relief denied.

Issue 6.  Concerning a change in reenlistment code, 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 her service to her 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 she remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of her 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 89, disrespect to a commissioned officer; Article 91, disrespect to a SNCO; 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 “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