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

   ex-Pvt, USMC
Docket No. MD03-00095

Applicant’s Request

The application for discharge review, received 20021015, requested that the characterization of service on the discharge be changed to honorable and reinstatement to rank of SGT.  The Applicant requested a personal appearance hearing discharge review before the Board in the Washington National Capital Region.  The Applicant did not designate a representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20030912.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was four to one 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 letter of explanation to the events preceding his discharge 
Applicant’s returned BCNR application (DD Form 149)

PART II - SUMMARY OF SERVICE

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

	Active:    None
	Inactive: USMCR(J)		970220 - 970316		COG

Period of Service Under Review:

Date of Enlistment:  970317	Date of Discharge:  000502

Length of Service (years, months, days):

	Active:  03  01  15
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 (4 months extension)

Education Level:  12			AFQT:  53

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (10)			Conduct:  3.9 (10)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Expert Badge, SSDR, MM

Days of Unauthorized Absence:  None 

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:

990302:	Counseled for deficiencies in performance and conduct [disrespectful to an NCO, during last two field operations with the company exhibited many counts of poor judgment, lack of attention to detail and poor field hygiene, failed to follow standard rules and regulations while on a live fire by not wearing proper protective gear and collecting ammo, fell asleep on watch, and Applicant’s pattern of misconduct is unacceptable behavior and it will not be tolerated].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990514:	Platoon Commander noted that Applicant was unprepared for inspection on 990503 and that he had exceeded the boundaries for weekend liberty.

990810:	Acknowledged eligibility for but not recommended for promotion to Cpl for the Month of Sep 99 promotion period because of pending court martial.

990910:	Acknowledged eligibility for but not recommended for promotion to Cpl for the quarter of Oct, Nov and Dec 99 promotion period because of court martial.

991006:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 86 (2 specifications):  Unauthorized absence.
	Charge II:  violation of the UCMJ, Article 92:  
	Specification:  On divers occasions, on or about 14 May 99, violate a lawful general regulation, to wit:  Marine Corps Order 1020.34F, dated 27 Jan 95, by wrongfully wearing a tongue stud.
	Charge III:  violation of the UCMJ, Article 91:
	Specification:  On or about 12 Jul 99, was disrespectful in language and deportment toward Cpl C_, a noncommissioned offer, than known  by the accused to be a superior noncommissioned officer, who was then in the execution of his office, by saying to him, “Shut the f--- up before I punch your face out” and “If you don’t shut up, I am going to beat your ass,” and “You better back off,” and “I don’t give a shit” or words to that effect.
	Added Charge I:  Violation of UCMJ, Article 91:  
	Specification:  Having received a lawful order issued by Master Sergeant R_, USMC, a staff noncommissioned officer, then known by the accused to be a staff noncommissioned officer, not to wear a tongue stud or any other eccentric jewelry, on duty or off duty, in uniform or civilian attire, an order which it was his duty to obey, did, at Camp Pendleton, CA, on divers occasions, on or about in July and August 1999, willfully disobey the same.
	Finding:  to Charge I and the specifications thereunder - Not Guilty.
	To Charge II and specification thereunder – Guilty.
	To Charge III and specifications thereunder – Guilty.
	To Added Charge I and specification thereunder – Guilty.
	To Added Charge II and specification thereunder -  Not Guilty.
	Sentence:  Reduction to E-1, forfeiture of $639.00 per month for 1 month and 30 days confinement (Brig, Camp Pendleton).
	CA action 991013:  Sentence approved and ordered executed.

991102:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions as evidenced by 6105 entry and page 13 summary court-martial conviction, and three page 11 counseling entries not recommending promotion.

991102:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

991102:	Commanding Officer, Battalion Landing Team 1/4, 15th Marine Expeditionary Unit, recommended to Commanding General, 1st Marine Division (Rein), that Applicant be discharged under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.  Commanding Officer’s comments: (verbatim):  “Private D_ (Applicant) has been provided multiple opportunities to perform to standards consistent of a United States Marine.  Each time he has failed.  He is unreliable.  An intelligent young man, Private D_ (Applicant) is often too smart for his own good.  He blatantly disregards orders and regulations that do not suit him.  With our younger Marines he purposely attempts to challenge and belittle our battalion/BLT chain of command.  Private D_ (Applicant)’s continued presence in this organization serves as a serious distracter for all trying to instill/enforce standards we expect of our Marines.  He enjoys neither the confidence or trust of this command. Private D_ (Applicant) represents the beginning of a cancer that must be cut from our ranks.  Based upon the member’s record of service and the reason for this action, I recommend that the characterization of service be under other than honorable conditions.”

000424:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to minor disciplinary infractions, that the misconduct warranted separation, but by a vote of 2 to 1 the characterization of service be under other than honorable conditions and by a vote of 2 to 1 that the discharge be suspended.

000424:	SJA review determined the case sufficient in law and fact.

000428:	GCMCA [Commander, 1st Marine division (Rein)] 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 20000502 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 the Board’s consideration.  The Board does not have the authority under SECNAVINST 5420.174C to order his reinstatement to any previously held rank.  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 a summary court-martial 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 was treated unfairly by members of his chain of command, the record clearly reflects his disregard for the requirements of military discipline and demonstrated that he was unfit for further service.  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 to honorable would be inappropriate.  It must be noted that most Marines serve honorably and well and therefore earn honorable discharges.   In fairness to those Marines, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due.  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 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 91, disrespect to a NCO; Article 92, disobedience of 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