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

 ex-Pvt, USMC
Docket No. MD03-00705

Applicant’s Request

The application for discharge review was received on 20030313.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing discharge review before a traveling panel closest to Phoenix, AZ or a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter to the Applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel, all hearings are held in the Washington, D.C. Area.  The Naval Discharge Review Board (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 20040224.  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. “Naval Council Personnel Board,

This letter is in request that my reenlistment code on my DD Form 214 be changed to something other than an RE4. Enclosed you will find a DD Form 293 that I have filled out with all of my personal information. Also enclosed is a copy of my DD Form 214 and my Privacy Act Consent Form that I had previously sent to Congressman J_ F_.
The reason that I would like it to be changed is that I am planning to apply to the Phoenix Police Department in April of this year and the Los Angeles Fire Department in August. Although, lately, everything the in the news has driven me to want to change it even more. The reason for this code is as follows.  When I was in the military overseas during our deployment I had gotten into an argument with another Marine, LPL. M_. The argument escalated into a physical confrontation. At the time I was carrying a small dive knife. In the heat of the argument he came running at me and I pulled my knife. He went to reach for my knife and stuck himself in the hand. He barely cut the fatty tissue between his thumb and pointer finger, which I believe was on his right hand. During the court marshal on ship, at which time he did not testify against because we both knew that it was an accident, the paperwork stated that I had “stabbed him in the chest”. Because of the fact that the error was not caught until the end of the hearing, I was only sentenced to twenty-eight of confinement on Camp Pendleton. After I was released, my command had repeatedly asked me to stay but I declined and was discharged approximately two and a half to three months later on October 16th, 1998 with a General: Under Other Than Honorable Conditions. During my TAPS class on Camp Pendleton the San Diego Police Department had visited and was taking applications for employment. It was something that I had wanted to do for a long time but wasn’t sure how to go about it. This was because when I was being discharged, I was told that I would never get a good job because of the type of discharge that I had received. To conclude, I have researched this over the past four years and talked to many people, including enlisted men, officers, and recruiters. As I stated before, I am applying to the PPD in April and the LAFD in August. I would appreciate it very much to have this changed. I will take whatever steps necessary or stand before a Naval Board if need be to get this problem fixed. The mistakes I made were childish and very stupid. Furthermore, I accept full responsibility for what happened. Nothing I can say will change what I have done. I am sincerely regretful for the some of the decisions I have made in my past and it would be pointless to go on with reasons why I made them. I strongly hope that this can be changed so that it doesn’t interfere with any career path I might later choose or the possibility that I may again, one day, be able to serve my country. I would personally like to thank you very much for your time and consideration.”

Documentation

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

Privacy Act Consent Form dated January 23, 2003
Copy of DD Form 214
Letter from Applicant dated February 27, 2003

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		960223 - 960505	COG

Period of Service Under Review:

Date of Enlistment:  960506		Date of Discharge:  981016

Length of Service (years, months, days):

	Active:    02  05  10
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  58

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.9 (9)			Conduct:  3.8 (9)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Expert Badge

Days of Unauthorized Absence:  6

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:

970129:	NJP for violation of UCMJ, Article 86: Did on or about 0600, 970117, absent himself from his appointed place of duty and did remain so absent until 2100, 970122 (6 days/S).
Awarded restriction and extra duties for 14 days.  Not appealed.

970211:	Counseled for deficiencies in performance and conduct.  [You have received one non-judicial punishment for unauthorized absence, displayed a pattern of financial instability, and have required psychiatric counseling for a chronic depression condition.  These instances clearly display a pattern of misconduct.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980225:	Counseled for deficiencies in performance and conduct.  [Failure to comply with the UCMJ, failure to abide by the appropriate safety rules and good common sense and judgment while operating a loaded firearm while in a liberty status, which resulted in a negligent discharge and a self inflicted gunshot wound to your leg.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980226:	NJP for violation of UCMJ, Article 128: Did on or about 980205, unlawfully strike LCpl M_ on the chest with a knife; violation of UCMJ, Article 134: Did on or about 980205, wrongfully communicate a threat to LCpl M_, to wit: “I am going to cut you up.”
Awarded forfeiture of $251.00 pay per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

980425:	Summary Court-Martial.
	Charge I:  Violation of the UCMJ, Article 80: Attempt to miss movement.  Charge II:  Violation of the UCMJ, Article 81: Conspiracy to inflict injury to himself.
Charge III:  Violation of the UCMJ, Article 107: False official statement. Charge IV:  Violation of the UCMJ, Article 115: Malingering.
Charge V:  Violation of the UCMJ, Article 134: Soliciting.
	Finding:  To Charges I through V, and the specifications thereunder, guilty.
	Sentence:  Forfeiture of $617.00, confinement for 30 days, reduced to E-1.
	CA action 980425:  Sentence approved and ordered executed.

980901:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

980901:	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.

980901:	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 counseling for a pattern of misconduct, your non-judicial punishments for UCMJ Articles, 86, 128, and 134 and your summary court martial for Articles 80, 81, 107, 115, and 134. 

980924:	SJA review determined the case sufficient in law and fact.

981027:	GCMCA [Commander, 1st Marine Division (Rein)] 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 19981016 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 two 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.  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, to enhance employment opportunities, or for 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 80, attempts; Article 81, conspiracy; Article 86, unauthorized absence; Article 107, false official statements; Article 115, malingering; Article 128, assault; and Article 134, soliciting.

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