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

  ex-Pvt, USMC
Docket No. MD03-00935

Applicant’s Request

The application for discharge review was received on 20030424.  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 designate a 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 HONORABLE CONDITIONS (GENERAL)/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 believe that I was too immature at the age of 17.  I had found a new freedom & didn’t know what to do with it.  I am sorry for my actions, although I felt I was a good Marine.  If I could I would come back now!  If the Corps would let me.  I am now 32 y.o.  It breaks my hear that I do not have a fully honorable discharge form the greatest military force in the world.  

I also feel my CO Commander had it out for me.  I was charged for things I didn’t understand.  He made my CO. Gunnery Sgt. charge me with disobeying a lawful order.  I did not, & have proof.  That was my first office hours.  I didn’t understand my rights under the UCMJ.

Please help me!  SEMPER FI!!

T_ H_ (Applicant) U.S.M.C.”

Documentation

Only the Applicant’s service and medical records were reviewed, as the Applicant did provide additional documentation for the Board to consider.  

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		880303 - 880524	COG

Period of Service Under Review:

Date of Enlistment:  880525		Date of Discharge:  900601

Length of Service (years, months, days):

	Active:    02  00  06
	Inactive:  None

Age at Entry:  17  (Parental consent)        Years Contracted:  4 

Education Level:  12			         AFQT:  46

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.4 (8)			Conduct:  3.4 (8)

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, Rifle Sharpshooter Badge

Days of Unauthorized Absence:  None

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

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

Chronological Listing of Significant Service Events:

891003:	NJP for violation of UCMJ, Article 86:  Failed to go at time prescribed to Battalion drill practice at 0730 on 20Sep89.
Violation of Article 92:  0800, 21Sep 89, failed to obey a order given by SSgt A_ not to  wear unserviceable utilities.
Awarded forfeiture of $400.00 pay per month for 2 months (suspended for 6 months), restriction for 60 days and extra duties for 45 days.  No appeal indicated.

891006:	NJP for violation of UCMJ, Article 90:  Willfully disobeyed Major S_ command by breaking restriction at 2145 on 5Oct89.
Awarded forfeiture of $400.00 pay per month for 2 months (suspended for 6 months), correctional custody for 30 days.  No appeal indicated.

891115:	Counseled for deficiencies in performance and conduct [pattern of misconduct demonstrated by your actions over the last three months – failure to obey lawful orders, failure to go to appointed places of duty and continued involvement with military authorities].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

891219:	Suspension of NJP imposed and suspended on 891004 for a period of 6 months is hereby vacated and the punishment is ordered executed this date.

891227:	NJP for violation of UCMJ, Article 86:  Fail to go at the time prescribed to work section at 0745, on 891219.
Awarded reduction to E-2.  No appeal indicated.

891229:	Counseled for deficiencies in performance and conduct [pattern of misconduct demonstrated by your actions over the last four months – failure to obey written orders, and to be at appointed place of duty are indicative of this deficiency in your behavior].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

900205:	Suspension of NJP imposed and suspended on 891006 for a period of 6 months is hereby vacated and the punishment is ordered executed this date.

900205:	NJP for violation of UCMJ, Article 111:  0248, 28Jan90, operated a motor vehicle while drunk.
Awarded reduction to pay grade E-1, restriction and extra duties for 45 days.  No appeal indicated.

900218:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by receiving four nonjudicial punishments during the current enlistment, and by his actions and inability to respond to counseling, has demonstrated that he has no potential for further military service.

900221:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

900223:	Commanding Officer, Headquarters and Service Battalion, recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  The factual basis for this recommendation is due to respondent receiving four nonjudicial punishments during his current enlistment.  He has been counseled concerning his deficiencies, and by his actions and inability to respond to counseling, has demonstrated that he has no potential for further military service. 

900326:	Applicant voluntarily waives proceedings conditional upon receiving a general discharge.

900326:	Counsel for the respondent recommended the conditional waiver of the administrative discharge board be granted and Applicant be discharged with a general discharge.

900418:	SJA review determined the case sufficient in law and fact.  SJA recommended approval of the conditional waiver and separation with a general discharge, by reason of misconduct due to a pattern of misconduct.

900419:	GCMCA [CG, 3d FSSG, FMFPAC] advised the Commandant of the Marine Corps of Applicant's discharge under honorable conditions (general) 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 19900601 under honorable conditions (general) 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 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 four occasions and adverse counseling entries on other occasions.  The Applicant’s proficiency and conduct evaluation average, 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.

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 86, unauthorized absence; Article 90, disobedience to a commissioned officer; Article 92, disobey a lawful order; and Article 111, drunk driving.

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