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

  ex-LCpl, USMC
Docket No. MD03-00961

Applicant’s Request

The application for discharge review was received on 20030507.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance discharge review before a traveling panel closest to Oceanside, CA.  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.  Subsequent to the application, the Applicant converted the case to a documentary record discharge review.

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 (with admin discharge board), 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 was discharged twenty five days before E A S.  I served well over 95% of my contract.”

2.  “My discharge was unjust because it was based on three disciplinary actions when the third infraction should have been dropped.  The last non judicial punishment that I received was for being UA form 0700 18 Nov 87 to 0900 18 Nov 87.  At the time, I was married marine living off base with my family.  On the morning of Nov 18, I was late for formation because of situations beyond my control.  My car made it as far as the Las Pogus gate and could not go any further. Upon arrival at the Los Pogus gate I used the telephone at the guard shack and tried to call my platoon sergeant Staff Sergeant G_ informing him of the situation.  He was busy at the time so I left a message with the duty NCO.  I caught a ride from the Las Pogus guard shack to Camp Las Pogus, hitch a ride from there to HQCO 1stMar where I was told to report to my First Sergeant.  Who had already made up his mind that I was going to be brought up on charges.  I explain the situation to my First Sergeant who expressed to me with great zeal that UA was UA.  Giving me a since of hopelessness feeling my fate was sealed.

According to Article 86 (6) referring to the underline section of the following paragraph I believe that the njp could have and should have been handled differently, not making it to a company level NJP.  It was obvious with the telephone call to the duty NCO from the Las Pogus gate that my tardiness was not of my own choosing and totally involuntary and unavoidable.  Yes I had been in trouble before but this was not reason to hang a Marine out to dry.  I only had seven month left on my active service contract.  Was conducting myself according to the guidelines set up for a service member, these charges should have been exonerated.  Even after finding out that I was going before a discharge board.  I still showed up for work each day respected my superiors and carried out my duties as a member of the armed service.  I was discharged twenty-five days before my EAS.

Article 86 (6) Inability to return. The status of absence without leave is not changed by an inability to return through sickness, lack of transportation facilities, or other disabilities. But the fact that all or part of a period of unauthorized absence was in a sense en-forced or involuntary is a factor in extenuation and should be given due weight when considering the initial disposition of the offense.  When, however, a person on authorized leave, without fault, is unable to return at the expiration thereof, that person has not committed the offense of absence without leave.”

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)
Letter from Applicant, dated March 26, 2003
Letter to Daniels Jewelers, dated January 7, 2003 (2) 
Character reference, dated May 5, 2002
Job reference, dated June 14, 2001 (2) 
Letter of reference, dated September 24, 2002
Twenty-two pages from Applicant’s service record
Standard Form 180, dated August 24, 2001
Bachelor of Science, Computer Information Science, degree, dated December 20, 2002
Computer Information Science certificate, dated May 25, 2001
Letter of reference, dated July 8, 2003
Character reference, dated July 23, 2003
Character reference, dated May 11, 2003

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		840522 - 840624	COG

Period of Service Under Review:

Date of Enlistment:  840625		Date of Discharge:  880517

Length of Service (years, months, days):

	Active:    03  10  23
	Inactive:  None

Age at Entry:  21			Years Contracted:  4

Education Level:  14			AFQT:  56

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.9 (9)			Conduct:  3.5 (9)

Military Decorations:  None

Unit/Campaign/Service Awards:  None

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 (with admin discharge board), authority:  MARCORSEPMAN Par. 6210.3.

Chronological Listing of Significant Service Events:

840223:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

850429:	Counseled for deficiencies in performance and conduct.  [Lack of judgment in that SNM failed on 850429 to ensure he had proper transportation to get him to his place of appointed duty on time.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

850619:	Applicant assigned to urinalysis surveillance program.

850730:	NJP for violation of UCMJ, Article 86:
Specification: Unauthorized absence 0700-1300, 850717.
Violation of UCMJ, Article 112A:
Specification: Use some amount of a controlled substance on 850429, to wit: THC established by a urinalysis.
Awarded forfeiture of $200.00 per month for 2 months, correctional custody for 14 days, reduction to Pvt.  Appealed.  Appeal denied.

850801:	Applicant’s driving privileges suspended indefinitely for not having his drivers license on his person and for not appearing in traffic court.   Citation was issued 850628 and traffic court date was 850726.

851008:	Counseled for deficiencies in performance and conduct.  [Frequent involvement with military authorities, and unauthorized use of a controlled substance.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

870305:	Applicant’s driving privileges suspended for an indefinite period of time.

870403:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 86 (2 specs):
	Specification 1: Unauthorized absence from morning formation on 870129.
	Specification 2: Unauthorized absence from 870310 to 870311.
	Charge II: violation of the UCMJ, Article 109:
	Specification: Destruction of personal property.
	Finding: to Charge I and specification 2 thereunder, guilty. Charge I and specification 1 and Charge II and specification 1 thereunder, not guilty.
	Sentence: Forfeiture of 2/3 pay for 1 month.
	CA action 870507:  Sentence approved and ordered executed.

870429:	Counseled for deficiencies in performance and conduct.  [Failure to obey the orders and regulations of the Armed Forces of the United States and the UCMJ which has resulted in a pattern of misconduct.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

870930:	Counseled for deficiencies in performance and conduct.  [Frequent involvement with both civil and military authorities of a discreditable nature.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

871001:	Counseled for deficiencies.  [Pseudofolliculitis barbae PFB.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

880202:	NJP for violation of UCMJ, Article 86:
Specification: Absent from appointed place of duty on 0700-0900, 871118.
Violation of UCMJ, Article 92:
Specification: Failure to obey lawful order on 0700, 871118, to wit: not being at appointed place of duty.
Awarded extra duties for 30 days.  No indication of appeal found in service record.

880203:	Counseled for deficiencies in performance and conduct.  [Delinquent payment of Oceanside Furniture.  Twice in a period of two weeks the Company Commander received a call stating that SNM was behind on his payments.]  Applicant refused to sign.

880310:	Counseled for deficiencies in performance and conduct.  [Failure to attend his scheduled Family Service counseling set up by the Camp Pendleton Naval Regional Hospital on 880211 and 880301.  Strongly counseled concerning his total disregard for authority by the Military Police.  Since 850531 SNM has had 15 infractions with P.M.O.  LCpl M_ (Applicant) previously has been counseled by his chain of command, for the seriousness of his continued involvement with the Military Police.  LCpl M_’s (Applicant) flagrant irresponsibility in making restitution for his financial obligations within the civilian community is also noted.  This Headquarters has received numerous phone calls and letters indicating, SNM has fallen behind on his payments to include: vehicle repossession, Oceanside furniture, returned checks for insufficient funds, civil court appointment for non-payment of traffic citations in Vista and San Diego (several were serious enough to have warrants issued), failing to appear on court dates, landlords seeking payment for rent and damages to their property.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  Applicant refused to sign.

880315:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

880316:	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 obey orders and regulations, unauthorized absences from place of duty and illegal use of THC as evidence by two nonjudicial punishments and one summary court-martial.  

880329:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

880407:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to a pattern of misconduct, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

880428:	GCMCA [Commanding General, 1st Marine Division (Rein) FMF] 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 19880517 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).

Issues 1 and 2.  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, one summary court-martial, and adverse counseling entries on other occasions.  The Applicant’s 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.  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 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.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16C), Change 4, effective 29 Jul 87 until 26 Jun 89.

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; Article 109, destruction of personal property; and Article 112a, illegal drug use.

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