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

  ex-CPL, USMC
Docket No. MD03-00847

Applicant’s Request

The application for discharge review was received on 20030407.  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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040312.  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: GENERAL UNDER 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.  I am hoping this letter and this application is processed as fast as possible I am requesting an upgrade for my re-enlisted code for RE-4 to RE-2.  I am trying to go back on active duty with the US Army.  The Army says if I get this upgrade I will be allowed to serve our country and more.”

Documentation

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

Letter from Applicant’s wife  
Copies of DD Form 214 (2)

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		920505 - 960504	HON
	Inactive: USMCR(J)		911227 - 920504	COG

Period of Service Under Review:

Date of Enlistment:  970106		Date of Discharge:  020813

Length of Service (years, months, days):

	Active:    04  07  07
	Inactive:  None

Age at Entry:  24			Years Contracted:  4 

Education Level:  12			AFQT:  48

Highest Rank:  SGT

Final Enlisted Performance Evaluation Averages (number of marks): All Enlisted performance reports were not available to the Board for review.  Final Pro/Con markings were 3.9/2.0. 

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM(3), NDSM(2), SSDR(5), SASM(2), MUC, LOA(2), COC, MM, Expert Rifle(2), Pistol Sharpshooter

Days of Unauthorized Absence:  1

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

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

Chronological Listing of Significant Service Events:

970106:	Reenlisted for 48 months [Extension or reenlistment not found in service record].  

970502:	Counseled regarding continuous tardiness to morning formations since arrival to Delta Company in February 1997.

980925:	NJP for violation of UCMJ, Article 86: UA from appointed place of duty from 2230, 980909 to 0930, on 980911, violation of UCMJ, Article 92: Disobeyed a lawful order given by GySgt C_, to continue to prep his gear for a pre-inspection by leaving without the task being completed.
	Award:  Forfeiture of $500.00 pay per month for 2 months (suspended for 6 months), restriction and extra duty for 30 days (suspended for 6 months), reduction to E-4.  No indication of appeal in the record.

981022:	Counseled for deficiencies in performance and conduct.  [Unauthorized absence, specifically, your unauthorized absence period from 2230, 980909 to 0930, 980911, which subsequently resulted in your non-judicial punishment on 980925.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020103:	Physically assaulted wife and was arrested by PMO.  Family Advocacy has indicated substantiated finding of Level III domestic violence/spousal abuse by SNM.  [Extracted from 2ND Platoon Commander’s recommendation for administrative separation message dated 020604.]

020104:	Assigned Military Protection Order.

020115:	Counseled for deficiencies in performance and conduct.  [Concerning Article 92 of the UCMJ.  As of 020111 you are officially relieved of your duties as the section leader of the C-7 section.  During Steele Knight you were derelict of your duties in that, on or about 1 December, you attempted to leave 29 Palms and return back to Camp Pendleton by calling back and telling 1stSgt T_ that you were no longer needed in 29 Palms.  1stSgt T_ told you to have the H&S 1stSgt call him, in order to ensure your were no longer needed for the exercise.  Instead, you tried to make it seem to H&S Company, that your Company Commander wanted you to come back.  When in reality your C.O. did not want you to return without permission from H&S Company.  When the BN Commander and SgtMaj found you on the Delta Company ramp, you were ordered to return to the field to support 7th Marines, which was the original unit that you claimed no longer needed you.  Before you departed, you received a verbal order from the BN SgtMaj, “not to leave the field without notifying the BN first.” On or about 12 December, a vehicle in your charge broke down.  You radioed the BN, requesting a contact team.  When the contact team came out, they attempted to fix your ”down” vehicle.  GySgt M_, from the contact team, then told you to run the AAV for 20 to 30 minutes to see if it would hold up.  GySgt M_ also instructed you to call BN back, via radio, to give an update on your situation.  Instead of calling BN back, as instructed, you left the field and went back to Delta Company’s ramp, which was a direct violation of the SgtMaj’s verbal order to you.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

020523:	NJP for violation of UCMJ, Article 92: Derelict in the performance of duties in that you negligently failed to inspect a junior Marine’s uniforms prior to attending Corporal’s Course; violation of UCMJ, Article 128: On or about 020103 unlawfully strike his wife with his hands.
	Award:  Forfeiture of $876.00 pay per month for 2 months (suspended for 6 months), extra duty for 45 days, reduction to E-4.  No indication of appeal in the record.

020605:	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 your violation of Article 128, specifically, spousal abuse.  

020617:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

020617:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

020712:	Conditional waiver of ADB disapproved.

020716:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to the commission of a serious offense, that the misconduct warranted separation, and recommended discharge under honorable conditions (general).

020801:	SJA review determined the case sufficient in law and fact.
 
020801:	GCMCA [Commanding General, 1st Marine Division (Rein)] directed the Applicant's discharge under honorable conditions (general) 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 20020813 under honorable conditions (general) 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 honorable conditions (general) is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by award of nonjudicial punishment (NJP) on two occasions 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.  An upgrade to honorable is inappropriate.  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 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; Article 92, disobey a lawful order; 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