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

 ex-Pvt, USMC
Docket No. MD03-00097

Applicant’s Request

The application for discharge review, received 20021015, 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 designate a representative on the DD Form 293.

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 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.  My discharge is improper because it is based on two incidents in 39 months of service.

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		970613 - 980210	COG

Period of Service Under Review:

Date of Enlistment:  980211		Date of Discharge:  010514

Length of Service (years, months, days):

	Active:    03  03  04
	Inactive:  None

Age at Entry:  18			Years Contracted:  5 

Education Level:  12			AFQT:  52

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0 (9)			Conduct:  4.0 (9)

Military Decorations:  None

Unit/Campaign/Service Awards:  MUC, MM(2), LoA, Rifle Marksmanship Badge

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. 6210.3.

Chronological Listing of Significant Service Events:

981026:	Counseled for deficiencies in performance and conduct [failed PFT specifically the Pull up portion].

000619:	Counseled for deficiencies in performance and conduct [violation of article 86 of the UCMJ - specifically, failure to be at appointed place of duty (0500 muster for rifle range) and failure to be at the MAG-16 armory to clean weapon at 0730].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

001115:	Counseled for deficiencies in performance and conduct [violation of article 86 of the UCMJ - specifically, failure to be at appointed place of duty].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

001213:	NJP for violation of UCMJ, Article 86:  On or about 7 Dec 00, directed to report to work center after rifle range.
Awarded reduction to pay grade E-2, forfeiture of $300.00 per month for 2 months (suspended for 6 months), restriction and extra duties for 30 days.  Not appealed.

001213:	Counseled for deficiencies in performance and conduct [not upholding Marine Corps Standards by not qualifying on the rifle range].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010213:	NJP for violation of UCMJ, Article 92:  On or about, 15 Dec 00, directed to field day barracks room, to which failed three subsequent times.
Awarded reduction to pay grade E-1, restriction and extra duties for 30 days.  Not appealed.

010213:	Counseled for deficiencies in performance and conduct [violation of article 92 of UCMJ - failure of PFT].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010215:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by 6105 counseling for failing two PFTs, being UA for rifle range, failure to be at appointed place of duty, failure to qualify on the rifle range, two charges of Article 15 of the UCMJ for charges 86, 92, of the UCMJ.

010315:	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.

010315:	Letter of Character, D.R. J_, Asst Aircraft Maintenance Officer:  “Pvt D_ (Applicant) may have the potential to be a good Marine, however, his reluctance of accept and correct his deficiencies prevents him from becoming such.  He shows no sign of improvement even after being given many opportunities and the tools to accelerate.”

010321:	Letter of Character, R. J. M_, Maintenance Control Chief:  “In my mind, a decision had to be made whether to attempt the salvage of this Marine, or to begin to process him on the basis of incorrigibility.  Understanding the weight of responsibilities and future operations…  I felt that under the circumstances, it was Pvt D_ (Applicant)’s immediate responsibility to respond favorably to our efforts within the shop at rectifying his problems.  At this, he failed miserably, showing a complete lack of moral and professional character, and in my opinion, a total disregard for the Marines around him, HMM-163 morale and Esprit, and the Marine Corps in general…”

010406:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  

010416:	SJA review determined the case sufficient in law and fact.

010418:	GCMCA [CG, 3d MAW, San Diego, CA] 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 20010514 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 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 two nonjudicial punishments 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.  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 86, unauthorized absence; Article 92, disobeyed 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