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

 ex-LCpl, USMC
Docket No. MD03-00886

Applicant’s Request

The application for discharge review was received on 20030414.  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 Memphis, TN.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter, the Applicant 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 20040401.  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 – Pattern of misconduct (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1.  I am submitting from DD 293 to the review board and I am asking that my “Other than Honorable Conditions” discharge be upgraded to Honorable.  I would like to be granted the opportunity to meet and redeem myself while present before a review board panel at your earliest date concerning the issues which took place while serving my tour of duty in the United States Marine Corps from Feb 87 thru Jan 91.  I am highly interested in rejoining the Military in the near future.”

Documentation

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

Copy of DD Form 214
Letter from Applicant
Letter from LtCol S_ C_, USA
Letter of recommendation from L_ B_
Letter of recommendation from L_ B. C_
Letter of recommendation from C_ L. B_

PART II - SUMMARY OF SERVICE

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

	Active:   USAR		830909 - 860711	HON
	Inactive: USMCR(J)		870202 - 870219	COG

Period of Service Under Review:

Date of Enlistment:  870220		Date of Discharge:  910111

Length of Service (years, months, days):

	Active:    03  10 22
	Inactive:  None

Age at Entry:  21			Years Contracted:  4 

Education Level:  12			AFQT:  35

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (9)			Conduct:  4.1 (9)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Expert (3), ASR, AGCM, AAM, LOA

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Pattern of misconduct (administrative discharge board required but waived), authority:  MARCORSEPMAN Par. 6210.3.

Chronological Listing of Significant Service Events:

870810:	NJP for violation of UCMJ, Article 109 (2 Specifications). Specification 1: Willfully and wrongfully damaged a 1987 Oldsmobile, the property of Mrs. G. H_, civilian, by throwing a rock which struck and damaged the driver’s side door, damage being in the amount of $175.50, 2350, 870615, Montford Point Road, Camp Johnson, MCB, Cam Lej, Specification 2: Willfully and wrongfully damaged a 1986 Nissan Pickup Truck, the property of LCpl C. L. A_, USMC, by throwing a rock inside the cab of the truck resulting in damage to the lower portion of the back window frame and the interior light cover, damage being in the amount of $118.89, 2340, 870615, Montford Point Road, Camp Johnson, MCB, CamLej, violation of UCMJ, Article 128: Assaulted LCpl J. G. R_, USMC, by throwing a rock and hitting him in the right shoulder, while he was a passenger in a 1986 Nissan Pick Truck, driven by LCpl C. L. A_, USMC, 2340, 870615, Montford Point Road, Camp Johnson, MCB, CamLej.
Awarded forfeiture of $200.00 pay per month for 2 months, reduction to E-2 (suspended for 150 days).  Not appealed.

870811:	Counseled for deficiencies in performance and conduct.  [Lack of regards for military rules/regulations.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

880212:	NJP for violation of UCMJ, Article 91: On 880126 was disrespectful in language and deportment to Sgt Z_ by saying to him in an aggressive and surly manner, “You have no right to talk to me like that,” and “I won’t give you no respect,” violation of UCMJ, Article 92: Failed to obey a lawful order from Sgt Z_ to return to barracks on 880126, violation of UCMJ, Article 128: Assaulted Sgt Z_ on 880126 by striking him in the chest and stomach with his shoulder and elbow, violation of UCMJ, Article 134: Did on 880126 wrongfully communicate a verbal threat to Sgt Z_, by saying to him “We can finish this another way,” and/or “if you want to, we can go somewhere and settle this.”
Awarded forfeiture of $200.00 pay per month for 2 months (suspended for 2 months), extra duties for 30 days, reduction to E-2.  Not appealed.

880617:	NJP for violation of UCMJ, Article 134: Disorderly conduct on or about 2210, 880611.
Awarded reduction to E-1 (suspended for 4 months).  Not appealed.

880801:	Counseled for deficiencies in performance and conduct.  [Frequent involvement with military authorities of a discreditable nature and your frequent violation of the UCMJ.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

901213:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 91 (2 Specifications). 
	Specification 1: Disobeying a lawful order on 901115 at Naval Amphibious Base Little Creek, Norfolk, VA, Specification 2: Disrespectful in language towards GySgt H_ on 901115 at Naval Amphibious Base Little Creek, Norfolk, VA.  Charge II: violation of the UCMJ, Article 134: Wrongfully communicate a threat on 901115 at Naval Amphibious Base Little Creek, Norfolk, VA. 
	Finding:  to Charge I and the specifications 1 and 2 thereunder, guilty.  To Charge II and specification thereunder, guilty. 
	Sentence:  CHL for 30 days, forfeiture of $500.00, reduced to E-3.
	CA action 901129:  The portion of the sentence awarding reduction in rank to pay grade E-3, forfeiture of $200.00 pay per month and 30 days hard labor without confinement is approved and ordered executed, the remaining forfeiture of $300.00 pay per month is suspended for 6 months.

901228:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

901228:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

901228:	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 repeated failure to conform to military rules and regulations as evidenced by your three non-judicial punishments and one summary court martial since joining the Marine Corps.  Your demonstrated lack of maturity and failure to accept responsibility are considered detrimental to the good order and discipline of the Marine Corps.  Accordingly, I have determined you have no further value to the military service. 

910104:	GCMCA [Commander, Landing Force Training Command Atlantic] 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 19910111 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 one summary court-martial, nonjudicial punishment (NJP) on three 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.  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 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 P1900.16D), effective 27 Jun 89 until 17 Aug 95.

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 91, disrespect to a SNCO; Article 92, disobey a lawful order; Article 109, damage private property; Article 128, assault; and Article 134, disorderly conduct.

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