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

 
 ex-Pvt, USMC   
Docket No. MD03-00124

Applicant’s Request

The application for discharge review, received 20021024, 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 20030926.  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.  I received I Art 15 for disrespect to PMO.  He claimed I was wearing earrings.  I was not and said so.  My DD214 shows the award of a good conduct medal.  I was promoted to LCpl.  I completed all assigned duties-see attached Certs.  The punishment of OTH discharge is much too harsh in view of my offense and past record of discipline & successes.

Documentation

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

Copy of DD Form 214
Copy of Marine Combat Training Certificate dated August 15, 1997
Copy of Thank You Letter from L_ L_, Principal of A_ W. E_, Elementary School
Copy of Letter of Appreciation dated September 10, 1999
Copy of Certificate of Completion (Avionics Technician Common Core) dated October 29, 1997
Copy of Certificate of Completion (Oxyfuel Shielded Metal Arc Weld) dated April 2, 1999
Copies of Collateral Duty Assignment Letter dated February 1, 1998 (3)
Copy of Certificate of Completion (Avionics Technician Intermediate Level Course, Class AI) dated March 26, 1998
Copy of Certificate of Completion (AN/USM CAT-IIID Operation/Maintenance) dated June 19, 1998
Copy of Certificate of Completion (20 hours Alcohol Impact Course)
Certificate of Completion (Intermodal Dry Cargo Container (CSC) Reinspection Course) dated 17-19 November, 1998
Copy of EPA Refrigerant Certification Program Test Results
Copy of U.S. Government Motor Vehicle Operator’s Identification Card 
Character Reference Letter dated August 15, 2002
Enrollment Verification Letter from Augusta Technical College dated August 29, 2002  

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		970227 - 970420	COG

Period of Service Under Review:

Date of Enlistment:  970421		Date of Discharge:  000613

Length of Service (years, months, days):

	Active:    03  01  23
	Inactive:  None

Age at Entry:  22			Years Contracted:  5 

Education Level:  14			AFQT:  71

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (6)			Conduct:  3.9 (6)

Military Decorations:  None

Unit/Campaign/Service Awards:  LOA, Rifle Sharpshooter 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:

980528:	NJP for violation of UCMJ, Article 86: Did on or about 980508, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: NAMTRAGRUET, Bld 515, Marine Corps Air Station, Miramar; violation of UCMJ, Article 134: Did on or about 980508, as a result of wrongful previous overindulgence in intoxicating liquor was incapacitated for the proper performance of his duties.
Awarded forfeiture of 7 days pay for 1 month, reduction to E-2 (suspended for 6 months).  Not appealed.

980929:	Counseled for deficiencies in performance and conduct.  [Illegal drug involvement, marijuana usage identified through urinalysis confirmed by NAVDRULAB, JAXFL msg 092146Z Sep 98.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990804:	NJP for violation of UCMJ, Article 86: UA from 0731-0830, 990203; violation of UCMJ, Article 92: SNM violated MCO P1020.34F by wrongfully wearing an earring on or about 990716; violation of UCMJ, Article 92: SNM violated MCO P1020.34F by growing a beard.
Awarded forfeiture of $200.00 per month for 1 month (suspended for 6 months), restriction for 30 days, extra duties for 15 days.  Not appealed.

991118:	NJP for violation of UCMJ, Article 111: DWI (refusal) on 991024; violation of UCMJ, Article 92: Failure to obey order or regulation by wearing earrings on 991024.
Awarded forfeiture of $450.00 per month for 1 month, restriction and extra duties for 30 days.  Not appealed.

991122:	Counseled for deficiencies in performance and conduct.  [Alcohol related incident, specifically: DWI (refusal to take breathalizer) on 991024.  Failure to obey order or regulation by wearing earrings in both ears and speeding on 991024.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000226:	Counseled for deficiencies in performance and conduct.  [Habitual tardiness and failure to maintain quarters in a manner that does not interfere with proper health, safety and essential military consideration in accordance with GruO 11101.1B.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000313:	Applicant agreed to fully participate in Alcohol Treatment program.
 
000330:	Applicant terminated from Alcohol Treatment program for non-compliance.

000425:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

000425:	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.

000425:	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 continuous involvement with military authorities as evidenced by three non-judicial punishments and three adverse counseling entries on page 11 of the service record. 

000505:	Commanding Officer, Marine Aircraft Group 14 concurred with the recommendation that Applicant be discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct

000508:	NJP for violation of UCMJ, Article 86: UA from work center from 0700-0800, 000407; violation of UCMJ, Article 86: UA from work center from 0700-0816, 000427.
Awarded forfeiture of $450.00 per month for 2 months (forfeiture of $350.00 pay per month for 2 months, suspended for 3 months).  Not appealed.

000518:	SJA review determined the case sufficient in law and fact.

000518:	GCMCA [Commanding General, 2d Marine Aircraft Wing] 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 20000613 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 nonjudicial punishment (NJP) on four 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.  An upgrade would be inappropriate.  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, disobey a lawful order; Article 111, DWI, Article 134, incapacitated for duty.

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