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

  ex-Pvt, USMC
Docket No. MD03-00647

Applicant’s Request

The application for discharge review was received on 20030225.  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.  Subsequent to the application, the Applicant obtained representation from the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040212.  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. 6210.6.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “Dear Sir or Madam:

I wish to have my military discharge upgraded. I was discharged form the United States Marine Corps. On Jan. 10 of 2000. At the time of my separation, I was given an Other than honorable discharge. I was charged with desertion by the military from June 29 of 1998, to July 6 of 1999. At the time of the offense I was a very immature 20 year old. I reflect back on the incident, and wish I possessed then, the maturity I have now.

At the time, I was experiencing some family issues back at home. My mother was struggling both financially, and emotionally. Although I did send money home whenever possible, I felt it was not enough. I wanted to be there with my family. I regrettably made the decision to leave my duty station, and returned home. It is a decision that I will regret for the rest of my life.

Now at 26 years of age, that foolish decision still torments me. Not because an Other than honorable discharge, has impeded possible employment opportunities. It’s quite the contrary. My post military life has been very productive and successful. I’ve not had any problems with the law, nor do I intend to. I’ve a very lucrative career, with American Student Assistance, as a wellness Advisor.

This great country that has given me so much, that has made so many things possible for me. I turned my back to it, when it needed me. Believe me when I tell you how deeply remorseful, and tormented I am over what I’ve done. I hope this tragic mistake does not prevent me, from once again serving this great country, in the Army Reserves. Thank you for your time. I await your decision in this matter.

Respectfully Yours,

L_ P_ Jr (Applicant)”

Additional issues submitted by Applicant’s representative (American Legion):

“2.  (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of the application.”

Documentation

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

Applicant’s DD Form 214 (Member 1 and 4)

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		960702 - 960728	COG

Period of Service Under Review:

Date of Enlistment:  960729		Date of Discharge:  000110

Length of Service (years, months, days):

	Active:    03  05  12	Does not exclude lost time
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  56

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.1 (6)			Conduct:  2.6 (7)

Military Decorations:  None

Unit/Campaign/Service Awards:  MUC, SSDR

Days of Unauthorized Absence:  395

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.6.

Chronological Listing of Significant Service Events:

970317:	NJP for violation of UCMJ, Article 86:
Specification: Unauthorized absence 1900, 970303.
Violation of UCMJ, Article 91:
Specification: Disrespected a SNCO by spinning his cover on his finger and saying “I guess I don’t get to eat chow today, because I have to see the CO at 1230, and have to wait in line, Huh J_?”
Awarded forfeiture of $235.00 per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

970513:	Counseled for deficiencies in performance and conduct.  [Failure to be at appointed place of duty, failure to get a haircut and disobeying orders from NCO’s.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

970522:	NJP for violation of UCMJ, Article 86:
Specification: Unauthorized absence from 970515 to 970518.
Awarded forfeiture of $235.00 per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

970725:	Counseled for deficiencies in performance and conduct.  [My failure to be at my appointed place of duty, lack of respect for authority, a pattern of misconduct evident by my 2 NJP’s and a page 11 entry in a 6 month period and my involvement of a discreditable nature with military and civilian authorities.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

970808:	NJP for violation of UCMJ, Article 91:
Specification 1: Disrespect towards a Staff Noncommissioned Officer, SSgt S_.
Specification 2: Disrespect toward a Noncommissioned Officer by saying “Fuck This” after being told to align in formation.
Violation of UCMJ, Article 92:
Specification 1: Disobeyed a lawful order to stand at the position of attention.
Specification 2: Disobeyed a lawful order to report to a SNCOIC after a battery march.
Awarded forfeiture of $450.00 per month for 2 months, restriction and extra duties for 45 days, reduction to Pvt.  Not appealed.

980207:	Counseled for deficiencies in performance and conduct.  [My poor judgment and lack of tact that led to a fight on the mess deck aboard the USS BELLEAU WOOD.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

990817:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 86:
	Specification: Unauthorized absence from 0800, 980606 until 0730, 990706 (394 days/surrendered).
	Finding: to Charge I and the specification thereunder, guilty.
	Sentence: Forfeiture of $639.00, confinement for 29 days, reduced to Pvt.
	CA action 990824:  Sentence approved and ordered executed.

990917:	Counseled for deficiencies in performance and conduct.  [Ability to continue as a Marine has been hindered by his commission of a serious offense.  Also, his inability to adapt to Marine Corps standards will be detrimental to his career as a Marine.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

991019:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

991019:	Applicant advised of his 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.

991019:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  The factual basis for this recommendation was Applicant’s documented unauthorized absence from 6 June 1998 to 7 July 1999.

991223:	SJA review determined the case sufficient in law and fact.

991223:	GCMCA [Commander, 1st Marine Division (Rein)] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20000110 under other than honorable conditions for misconduct due to the commission of a serious offense (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 three occasions, one 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 or under honorable characterization of service.  Relief denied.

The NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  

Issue 2.  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.

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 January 1997 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 for more than 30 days; Article 91: disrespect to a SNCO; and Article 92, disobey 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