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

   ex-Pvt, USMC
Docket No. MD03-00984

Applicant’s Request

The application for discharge review was received on 20030512.  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 20040408.  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 feel my discharge was improper due to the reason why I was discharged a day before EAS date that appears clearly on the copy of DD 214 Form that reads 05/07/98 even though I was held until May 8, 1998 when I was actually called into the admin office to sign and received my DD214.  Another reason why I feel my discharge was improper is due to the reason of my administrative discharge for a pattern of misconduct, even though I received the Good Conduct Medal.  I admit I had problems early on in my military service where I received office hours for insubordination towards a Staff NCOIC, but did not receive any reduction in rank due to special circumstances at the time of the incident due to the NCO’s intoxication.  I was also very homesick at the beginning of my service and ask several times to be released from the military but changed my mind after sitting down & talking with NCO’s & Staff NCOIC’s who help me through these problems and home life, after my 1st year and half of service I improved my military services and was promoted to E-3 in my 2nd year of service, when my shop had a new Staff NCOIC into the motorpool, at that point I became severely indebt to creditors such as loans, credit cards, car loans etc, and at this point I ask for help from my Staff NCOIC MSGT W_ for help such as authorizing me to obtained a 2nd job after working hours, but was turned down, as my financial problem grew worse I was given several Page 11’s for creditors calling my job and commands with letters of indebtedness, after my 2nd page 11 I received office hours where I received reduction in rank to E-1 that put me in a severe hardship with a wife & child and no vehicle’s that got reposed due to my reduction in rank and pay, and was later discharge for a pattern of misconduct that I feel is solely based on my incidents I had early on in my career.  I severed 3 years 11 mos 29 days of service and received a Other than Honorable discharge.  I feel that I deserve a Honorable Discharge due to length of service and because I received the Conduct Good Medal.  I was a good marine I never was UA or smoked marijuana or did anything that was grossly out of character for a marine I shoot expert on the Rifle range and received several 1st & 2nd glass PFT scores before suffering several injuries through out my military service.”

Documentation

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

Letter to Applicant from Ross Dress For Less, dated July 12, 2000
Statement from Applicant, undated
Certificate of completion, dated June 21-22, 2001
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		930614 - 940508	COG

Period of Service Under Review:

Date of Enlistment:  940509		Date of Discharge:  980507

Length of Service (years, months, days):

	Active:    03  11  29
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  35

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0 (13)			Conduct:  3.9 (13)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, Letter of Appreciation, GCM

Days of Unauthorized Absence:  1

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:

950512:	Counseled for deficiencies in performance and conduct.  [Disobedience of a lawful order and disrespect to an NCO and a SNCO.  I refused to stand my interior post as directed by my Sergeant and physically threatened the PltSgt and SNCOIC.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960820:	Counseled for deficiencies in performance and conduct.  [Communicating physical threats to other Marines and disrespectful speeches and gestures to NCO’s and SNCO’s over a 3 month period.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970106:	Counseled for deficiencies in performance and conduct.  [Dishonorably failing to pay a debt of $531.85 to J_ M_ Rental, for a car rental.  This is a violation of Article 134.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970116:	Counseled for deficiencies in performance and conduct.  [Failure to produce adequate insurance on my POV.  Failure to have vehicle registered.  Failure to provide on base registration (Base Decal).]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970226:	Counseled for deficiencies in performance and conduct.  [Failure to pay overdue bill and manage money properly after one page 11 and numerous Budgeting classes as well as completion of the Personal Finance MCI.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970723:	NJP for violation of UCMJ, Article 134:
Specification: Indebted to Pioneer Military Lending in the sum of $545.30 due and payable on 970617.
Awarded reduction to PFC.  Reduction suspended for 6 months.  Not appealed.

970903:	Counseled for deficiencies in performance and conduct.  [Judgment.  Failure to pay debt to Pioneer Military Lending.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970904:	Vacate suspended reduction to PFC awarded at Commanding Officer’s NJP dated 970723.

971215:	NJP for violation of UCMJ, Article 86:
Specification: Absent from motor transport section from 1300, 971103 to 1300, 971104 (1 day).
Violation of UCMJ, Article 91:
Specification: Treat with disrespect in language and deportment toward MSgt on 1300, 971104, to wit: by saying “I don’t care what you think.”
Violation of UCMJ, Article 134:
Specification: Dishonorably fail to pay debt, to wit: Indebted to Pioneer Military Lending in the sum of $909.34 which was due on 970203.
Awarded forfeiture of $450.00 per month for 1 month, restriction and extra duties for 45 days, reduction to Pvt.  Forfeiture suspended for 6 months.  Not appealed.

980204:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

980204:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

980205:	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 infractions of the Uniform Code of Military Justice, as indicated in your service record book, page 11’s dated 950512, 960820, 970106, 970116, 970226 and 970903.  In addition, NJPs dated 970723 and 971215. 

980408:	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.

980420:	SJA review determined the case sufficient in law and fact.

980421:	GCMCA [Commanding General, 3d 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 19980507 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.  The fact that the Applicant was discharged under other than honorable conditions one day prior to his EAS is both proper and equitable.  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 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.  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.

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 86, unauthorized absence; Article 91, disrespect to a SNCO; and Article 134, dishonorably fail to pay just debt.

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