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

  ex-PVT, USMC
Docket No. MD03-00887

Applicant’s Request

The application for discharge review was received on 20030415.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable or general/under honorable conditions.  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 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, 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 would like to add that when I was in the Marines I was young and newly married with marriage issues.  I got disturbing news during my tour and I was unable to separate my issues from my Marine Corps life.  I made wrong choices and regret them till this current day.  Due to my young and immature ways I hope you can find that an upgrade is due.  It has been 6 years and I feel that I have grown up and deserve to have an honorable Discharge and maybe a second chance to serve my country.”

Documentation

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

Request for a Certificate of Eligibility

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		950810 - 950814	COG

Period of Service Under Review:

Date of Enlistment:  950815		Date of Discharge:  970423

Length of Service (years, months, days):

	Active:    01  08  09
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  41

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0 (6)			Conduct:  3.7 (6)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDM, LOA, SSDR

Days of Unauthorized Absence:  None

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:

960227:	Counseled for deficiencies in performance and conduct.  [Failure to be at appointed place of duty, keeping NCOIC informed of whereabouts, and exhibiting history of “excuses” for late returns from liberty.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

961119:	NJP for violation of UCMJ, Article 121: At MCAS Iwakuni, Japan on 961110 wrongfully obtained a cellular telephone valued at $450.00, the property of a Japanese National, violation of UCMJ, Article 134: At MCAS Iwakuni, Japan on 961110 made a false official statement to a CID agent. 
Awarded forfeiture of $490.00 pay per month for 2 months (forfeiture of $490.00 pay per month for 1 month suspended for 6 months), restriction for 45 days (25 days suspended for 6 months), reduction to E-2.  Not appealed.

961213:	Counseled for deficiencies in performance and conduct.  [Concerning NJP on 961119 for violation of the UCMJ: making a false official statement, and stealing from a Japanese National.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970102:	NJP imposed and suspended on 961119 for a period of 6 months is hereby vacated and the punishment is ordered executed.

970227:	NJP for violation of UCMJ, Article 123a: On 961231, 970108, 970109 and 970112 at MCAS Iwakuni, Japan, did knowingly utter checks in the amount totaling $1050.00 without sufficient funds.
Awarded forfeiture of $450.00 pay per month for 2 months (suspended for 6 months), extra duties for 30 days, reduction to E-1.  Not appealed.

970306:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

970306:	Applicant advised of his rights and having elected 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.

970307:	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 discreditable involvement with authorities during this enlistment as evident by your two NJP’s, and statements of your supervisors, and other adverse entries contained on page 11 of your service record book.

970408:	SJA review determined the case sufficient in law and fact.

970408:	GCMCA [Commanding General, 2d Marine Aircraft Wing] 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 19970423 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, adverse counseling entries on other occasions, and a conduct evaluation average below the standard required for honorable service.  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 P1900.16E), 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 121, larceny; Article 123a, worthless checks; and Article 134, false official statements.

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