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

  ex-Sgt, USMC
Docket No. MD03-00773

Applicant’s Request

The application for discharge review was received on 20021218.  The Applicant requests the reason for the discharge be changed to “EOE.”  The Applicant requests 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 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 and the reason for discharge was discovered by the NDRB.  The Board’s vote was unanimous that the narrative reason of the discharge shall not change.  The discharge shall remain: HONORABLE/NONRETENTION ON ACTIVE DUTY, authority:  MARCORSEPMAN Par. 1005.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1.  My discharge was honorable but my separation authority code, separation code and reentry codes are incorrect.  It states that I was passed over 2 times but I was only passed over one time for promotion.  That year was September 1997 only.  I had not reached my high tenure of 13 years.  My high tenure would have been January 11, 1999.  This issue is only part of the situation.  Part 2 is that I was convicted at a summary-courts martial in February 1997 and had to forfeit $200.00.  This was one isolated incident in 12 years and 3 months of active duty service.  The judge did not order me discharged but the commanding officer used it as a bar to discharge me which is against Marine Corps regulations in “Marine Corps Separation Manual par. 6106.2.”  This was done by a negative reenlistment recommendation based on the courts-martial even after my immediate OIC recommended in favor of me.  I would like my separation code and reenlistment codes to be accurate with respect to my characterization of discharge and actual events at the time of discharge.”

Documentation

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

Copy of DD Form 214
        Seven pages from MCO P1900.16
        Fitness Report
        Recommendation for reenlistment from GySgt J.P. O_
        Recommendation for reenlistment from SSgt N_ J_
        Recommendation for reenlistment from SSgt R.J. S_
        Recommendation for reenlistment from GySgt P.S. R_
        Recommendation for reenlistment from MSgt J.O. J_
        Recommendation for reenlistment from SSgt A.G. C_
        Recommendation for reenlistment from GySgt J.E. F_
        Recommendation for reenlistment from GySgt A. C_
        Enlistment contract into SCNG dated 27 August, 1998
        Active Duty orders dated 28 January, 2003

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		841002 - 881001	HON
					900201 – 940111	HON
	Inactive: USMCR(J)		831031 – 841001	COG
891025 - 900131	COG

Period of Service Under Review:

Date of Enlistment:  940112		Date of Discharge:  980411

Length of Service (years, months, days):

	Active:  04  03  00
	Inactive:  None

Age at Entry:  27			Years Contracted:  4 (3 months extension)

Education Level:  12			AFQT:  67

Highest Rank:  Sgt

Final Enlisted Performance Evaluation Averages:  

All Fitness Reports were available for review

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM (w/2*), SSDR (w/3*), NDSM, NUC (2), KLM (K), SASM, LoA (2)  

Days of Unauthorized Absence:  None

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

HONORABLE/NONRETENTION ON ACTIVE DUTY, authority:  MARCORSEPMAN Par. 1005.

Chronological Listing of Significant Service Events:

950503:	Counseled for deficiencies in performance and conduct. [UA, and failure to call in after leave.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

970210:	Summary Court-Martial.
Violation of UCMJ, Article 91: Assault on a SNCO.
	Sentence:  Forfeiture of $100 per month for 2 months, letter of reprimand.
		970210:  CA action.  Approved and ordered executed.

980303:	Applicant informed by Commanding Officer that he is not recommended for reenlistment, because of nonretention on active duty.  Assigned reenlistment code of RE-4.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was honorably discharged on 19980411 due to nonretention on active duty (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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 (C and D).

Issue 1.  The Applicant was discharged at the expiration of his current enlistment contract due to his nonretention on active duty, not for the sole reason that he may have failed selection to Staff Sergeant.  No other narrative reason more clearly describes the circumstances surrounding the Applicant’s discharge.  The Board found no indication that the Applicant was improperly or inequitably denied retention and the statements and documentation provided by the Applicant did not refute the presumption of regularity in this case.  Relief denied.

Concerning a change in reenlistment code, 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.  

The Applicant’s discharge characterization and narrative reason accurately reflect 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 1005, DISCHARGE FOR EXPIRATION OF ENLISTMENT OR FULFILLMENT OF SERVICE OBLIGATION, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 Aug 95.

B.  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.  

C.  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.

D.  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