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

ex-Pvt, USMC 
Docket No. MD03-00318

Applicant’s Request

The application for discharge review was received on 20021211.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance discharge review before a traveling panel closest to Peoria, Illinois.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington, D.C. area.  The NDRB also advised that the Board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040514.  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 stated

Applicant’s issues, as stated on the application:

1.  “The discharge I was awarded in a court martial was diff. than that which I received in the mail.  While Home awaiting orders I was given an honorable under med cond.  I also had several charges brought against me that were False.  Every one of the charges was dropped in the court martial.  And the officer in charge of the court martial said I should be home within 2 weeks.  It never happened.  While I was in the USMC my grandfather had cancer.  I did not know till I got home and he passed on my 20th birthday March 28, 1998 so I had little time to enjoy after I was discharged.  I believe I was being held there until more false charges could be filed.

I was also grabbed by a major and thrown up against the wall with his hand around my throat in front of several people.  Major C_.  I did not file charges in fear of taking longer to be discharged.”

Documentation

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

DD Form 149
Letter to Applicant from the Board for Correction of Naval Records, dated September 30, 2002

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		960306 - 960812	COG

Period of Service Under Review:

Date of Enlistment:  960813		Date of Discharge:  970805

Length of Service (years, months, days):

	Active:    00  11  23	Does not exclude lost time
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  55

Highest Rank:  Pvt

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.5 (3)			Conduct:  3.3 (3)

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence: 27

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:

970313:	Special Court Martial.
	Charge I: violation of the UCMJ, Article 86 (4 specifications):
	Specification 1: Unauthorized absence from 961127 until 961202 and thereafter on 961204, absent from unit until 961221.
	Specification 2: Unauthorized absence from 961225 until 961227.
	Specification 3: Unauthorized absence from 970103 to 970105.
	Specification 4: Fail to go at the time prescribed to appointed place of duty on 970116.
	Charge II: violation of the UCMJ, Article 91:
	Specification: Willfully disobey lawful order on 970117, to wit: to go on working party.
	Charge III: violation of the UCMJ, Article 92:
	Specification: Derelict in the performance of duty on 970223, to wit: failed to stay awake while posted as firewatch.
	Charge IV: violation of the UCMJ, Article 134:
	Specification: Make and utter to Dominos Pizza and MMR Activity certain checks totaling $126.59 between 961123 and 961127 for the purpose of obtaining cash and/or merchandise, and did there after dishonorably fail to maintain funds in the MCWFCU for payment of such checks in full upon presentment for payment.
	Findings: to Charge I and III and specifications thereunder, guilty.  Charge II and IV: Withdrawn.
	Sentence: No punishment.
	CA 970528: Sentence approved and ordered executed.

970321:	Counseled for deficiencies in performance and conduct.  [On 960812 you signed a legal and binding contract with the United States Government, enlisting into the United States Marine Corps.  You failed to disclose certain information which has negated your contract due to a fraudulent enlistment.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970428:	NJP for violation of UCMJ, Article 86:
Specification: Unauthorized absence 1501, 970406 to 0700, 970407.
Violation of UCMJ, Article 91:
Specification: Treat with disrespectful deportment toward Sgt H_ on 1300, 970415, to wit: refused to go to working party.
Violation of UCMJ, Article 92:
Specification: Fail to obey lawful order on 970406, to wit: drive a personal vehicle while in a student status.
Awarded forfeiture of $450.00 per month for 2 months, restriction and extra duties for 14 days.  Forfeiture of $450.00 suspended for 6 months.  Not appealed.

970430:	Counseled for deficiencies in performance and conduct.  [Violation of Articles 86, 91 and 92.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970512:	Vacate suspended forfeiture awarded at Commanding Officer’s NJP dated 970428.

970512:	NJP for violation of UCMJ, Article 108:
Specification: Willfully suffer the SgtMaj’s hatch on 2200, 970508, to wit: damage by gouging (4 scratches) with a military tie clasp.
Awarded forfeiture of $100.00 per month for 1 month.  Not appealed.

970521:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

970521:	Applicant advised of rights and having consulted 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.

970705:	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 your failure to obey rules and regulations.  Your intolerable actions over the past seven months have resulted in two page 11 6105 counseling entries, two nonjudicial punishments and one special court-martial.  Through your actions, you have demonstrated that you no longer possess the potential for continued honorable service in the Marine Corps.  

970705:	SJA review determined the case sufficient in law and fact.

970715:	GCMCA [Commanding General, Marine Corps Base, Camp Pendleton, 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 19970805 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.  The Board’s regulations limit its review to a determination on the propriety and equity of the discharge.  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 two occasions, one special 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 or under honorable characterization of service.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  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 91, disrespect to a NCO; Article 92, disobey a lawful order; and Article 108, destruction of government property.

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