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

 ex-PVT, USMC 
Docket No. MD03-00568

Applicant’s Request

The application for discharge review was received on 20030212.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter the applicant was informed that he was approaching the 15-year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington, D.C. area.  The acknowledgement letter was returned as undeliverable.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040114.  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 – Pattern of misconduct (admin discharge board required but waived), authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1.  I met Gunnery SGT H_ about a year after my entry on active duty.  We did not get along from the start.  For example he gave me a 8 minute UA.  We were often trash talking to each other which finally elevated to an actual fight.  Gunnery H_ would often be in charge when the CO. was away, which he used to harass me and other with 8 minute UA; etc.  Most of my discipline problems were written up while he was in charge.  The marines gave me a choice-discharge immediately or stay in but with SGT H_.  I was not offered a transfer although I asked.  Had I been transferred I would gladly have stayed in.”

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)		841130 - 851008	COG

Period of Service Under Review:

Date of Enlistment:  851009		Date of Discharge:  880722

Length of Service (years, months, days):

	Active:    02  09  13
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  38

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0 (10)			Conduct:  3.8 (10)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Marksmanship Badge, COA

Days of Unauthorized Absence:  None

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Pattern of misconduct (admin discharge board required but waived), authority:  MARCORSEPMAN Par. 6210.3.

Chronological Listing of Significant Service Events:

861202:	NJP for violation of UCMJ, Article 113: On or about 2300, 861108 at MSSG-24, while on post as sentinel at Bldg. 1817, MSSG-24 motor pool was found sleeping upon his post; violation of UCMJ, Article 92: At Barracks FC305, on or about 2030, 861115, fail to obey a lawful general order, to wit: FSSGo P11101.4C, Appendix C, Par. 11, by wrongfully having alcohol in the barracks.
Awarded forfeiture of $250.00 pay per month for 1 month, restriction and extra duties for 30 days.  Not appealed.

861211:	Counseled for deficiencies in performance and conduct.  [Your lack of responsibility in maintaining a DD 2MC ID Card.  This is evidenced by the loss of two DD 2MC ID Cards in the past.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

870107:	Counseled for deficiencies in performance and conduct.  [Your developing a pattern of misconduct as evidenced by two non-judicial proceedings and numerous negative administrative remarks.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

870107:	NJP for violation of UCMJ, Article 86: Failure to go at the time prescribed to air alert formation at 0900, 870101; violation of UCMJ, Article 86: Failure to go at the time prescribed to morning formation at 0730, 870102.
Awarded forfeiture of $300.00 pay per month for 2 months (suspended for 6 months), orally reprimanded, correctional custody for 30 days, reduction to E-1.  Not appealed.

870126:	Counseled for deficiencies in performance and conduct.  [Developing a pattern of writing and cashing of worthless checks without sufficient funds.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

870702:	NJP for violation of UCMJ, Article 86: On or about 0715, 870630 was not at appointed place of duty, which was morning formation.
Awarded forfeiture of $140.00 pay per month for 1 month, restriction for 14 days.  Not appealed.

871021:	Counseled for deficiencies in performance and conduct.  [Lost his military ID Card on or about 871019; made false statement to admin clerk regarding his date of birth during preparation of new ID Card application, and falsified an official document by attesting with signature to a date of birth that would allow him to drink at legal age of 21.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

871208:	Counseled for deficiencies in performance and conduct.  [Your recent involvement with civilian authorities due to an alcohol related incident that occurred on or about 871201.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

880511:	NJP for violation of UCMJ, Article 91: On or about 0230, 880424 was disrespectful in language to GySgt H_ by saying “I’ll kick your fucking stupid ass,” and “I don’t give a fuck who you are you ain’t shit bitch;” violation of UCMJ, Article 128: Did aboard the USS Austin LPD-4, on or about 0230, 880424 assault GySgt H_ by sticking and waving his hands in GySgt H_’s face.
Awarded forfeiture of $335.00 pay per month for 1 month, restriction for 14 days, reduction to E-1.  Not appealed.

880620:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

880621:	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.

880621:	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 the respondent’s non-judicial punishments of 861202, 870107, 870702, and 880511, and his adverse page 11 entries of 861211, 870107, 870126 and 871208. 

880705:	SJA review determined the case sufficient in law and fact.

880707:	GCMCA [Commanding General] 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 19880722 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 four 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.  While he may feel that a member of his chain of command did not treat him fairly, 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.  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.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16C), Change 4, effective 29 Jul 87 until 26 Jun 89.

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 SNCO; Article 92, disobey a lawful order; Article 113, sleeping on post; and Article 128, assault.

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