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

  ex-Pvt, USMC
Docket No. MD03-00781

Applicant’s Request

The application for discharge review was received on 20030326.  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 listed a civilian counsel as the representative on the DD Form 293.

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 – Minor disciplinary infractions (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.2.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Issues submitted by Applicant and counsel (civilian counsel):

“Issue One
I request that my other than honorable discharge be upgraded to a honorable discharge which is more reflective of the nature and quality of my service to the Marine Corps.

I enlisted in the Marine Corps and reported for training at MCD San Diego on August 4, 1989.  I was discharged on December 29, 1992, approximately two years and four months later.  My proficiency and conduct marks were 4.4, 4.4 for both average in grade and average in service.  This would warrant a honorable discharge.  Page six indicates that I have fired sharp shooter on the riffle.  I have successfully completed drivers intro course and auto mechanics course obtaining a MOS of 3521.  I have participated in both Operation Desert Shield and Operation Desert Storm as reflected on page nine.  I have received a National Defense metal, two service metals, and a letter of appreciation.  This credible service certainly outweighs the three minor office hours convictions for relatively minor infractions on March 24, 1992, one hour unauthorized absence in violation of article 92; May 12, 1992 for having a female in my barrack’s room; and on July 16, 1992 driving with a base decal that had been revoked.  In balance, this service does not warrant an other than honorable discharge.

Issue Two:
In December of 1992 when I was referred for an Administrative Discharge Board, I was not provided an opportunity to consult with counsel.  My command told me that it wasn’t necessary and that I didn’t need consult with a lawyer and I should just sign and waive.  I did not want to do so, but I was a junior enlisted man and they intimidated me into signing the advisement of rights for Administrative Discharge Board without the benefit of counsel with an attorney.  I would request that my discharge be upgraded because I was not provided an opportunity to consult with counsel before waiving some important rights with respect to my discharge including counsel.”

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)
Thirteen pages from Applicant’s service record
The purpose and scope of the Board for Correction of Naval Records and the Navy Discharge Review Board, signed by the Applicant and witnessed by the civilian counsel, dated February 5, 2003

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		890429 - 890509	COG

Period of Service Under Review:

Date of Enlistment:  890510		Date of Discharge:  921229

Length of Service (years, months, days):

	Active:  03  07  20
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  48

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

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

Military Decorations:  None

Unit/Campaign/Service Awards:  Letter of Appreciation, SSDR, SASM with 2 Stars, NDSM, KLM, NUC

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct-Minor disciplinary infractions (administrative discharge board required but waived), authority:  MARCORSEPMAN Par. 6210.2.

Chronological Listing of Significant Service Events:

891211:	Counseled for deficiencies in performance and conduct.  [Substandard conduct and performance of duty due to your failure to conform to military standards and regulations.  Specifically, your sleeping in class, uncaring attitude, and disrespect towards two women Marines in your class.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920324:	NJP for violation of UCMJ, Article 86:
Specification: Absent from appointed place of duty on 0730-0830, 920319.
Awarded forfeiture of $150.00 per month for 1 month.  Not appealed.

920423:	NJP for violation of UCMJ, Article 92:
Specification: Had a female sleeping in his rack during a routine barracks inspection on 0910, 920320.  Further inspection showed the room to be in disarray, with empty beer cans littered about the room.
Awarded forfeiture of $225.00 per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

920514:	Counseled for deficiencies in performance and conduct.  [Frequent involvement with military authorities: minor military infractions.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920707:	NJP for violation of UCMJ, Article 92:
Specification: Violated a written base order, BO P5000.2H by operating a vehicle while on a suspended/revoked license on 0020, 920512.
Violation of UCMJ, Article 134:
Specification: Wrongfully possess a base decal that was issued to another vehicle on 0200, 920512, with intent to deceive military police during a Commanding General’s authorized ID check.
Awarded forfeiture of $441.00 per month for 2 months, restriction and extra duties for 45 days, reduction to PFC.  Forfeiture suspended for 6 months.  Not appealed.

920727:	Disposition of Physical Evaluation Board.  Physically unfit.  Requested permanent separation.

920910:	CMC directed Applicant’s discharge by reason of physical disability with severance pay.

920914:	Vacate suspended forfeiture awarded at Commanding Officer’s NJP dated 920707.

921123:	Counseled for deficiencies in performance and conduct.  [Use of inappropriate language in the presence of a female civilian dependent and ethnically inappropriate comments.]  

921207:	NJP for violation of UCMJ, Article 92:
Specification: Violate BO P5000.2H on 1600, 921120, driving aboard Camp Pendleton while driving privileges were suspended/revoked.
Awarded reduction to Pvt.  Not appealed.

921213:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions and misconduct due to a pattern of misconduct.

921215:	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.

921215:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions and misconduct due to a pattern of misconduct.  The factual basis for this recommendation was your four nonjudicial punishments, and a 6105 page 11 counseling of 11 December 1989.  

921223:	SJA review determined the case sufficient in law and fact.

921224:	GCMCA [Commander, 1st Force Service Support Group] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19921229 under other than honorable conditions for misconduct due to minor disciplinary infractions (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’s issue is without merit.  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 four occasions and adverse counseling entries on other occasions.  The Applicant’s conduct evaluation average is below the standard required for honorable service.  The Applicant’s conduct 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.  An upgrade is inappropriate.  Relief denied.

Administrative separation due to misconduct takes precedence over discharge for medical reasons.  Therefore, the Board found no impropriety or inequity in the fact that due to the Applicant’s continued misconduct, his discharge for a physical disability was set aside.

Issue 2.  The Applicant’s issue is without merit.  On 19921215, the Applicant consulted with counsel concerning his administrative separation and chose to waive his right to make a statement and to request an administrative discharge board.  The discharge was proper and equitable.  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.  

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 P1900.16D), effective 27 Jun 89 until 17 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