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

  ex-PVT, USMC
Docket No. MD03-01025

Applicant’s Request

The application for discharge review was received on 20030521.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record review.  The Applicant listed Veterans of Foreign Wars as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040423.  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. 6210.6.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1.  To The Board of Corrections
I'd like to start by saying I am very sorry for any inconvenience I have caused the Marine Corps.   I know that it will be hard to state my case, but I will do the best of my ability by placing you exactly in my position.   I’m writing to ask that my RE Code and character of service be upgraded so that I may reenter the military and continue to serve my Country as I started.  I served in the Marine Corps for three years and eight months of honorable service before being discharged with an administrative separation, for Article 86 of the Uniform Code of the Military Justice.  I accept full responsibility for my actions.  I put myself in a situation that could have been avoided if I had been more mature and level headed.  I feel I deserve as good of discharge and RE Code as anyone that has been discharged from the military.
As long as I was in the Marine Corps, I served hard and confidently as I stayed ahead of the game.  I feel that everyone makes mistakes, but the thing with making mistakes is, you can recover and be successful after your mistakes are corrected.  I feel that I proved myself to be proficient, loyal, and dedicated to the Corps when I was released from the brig and continued to serve full heartedly from November of 2000 until April 2001.  After then, I received notice that I was being discharged.  My heart was torn because my understanding I was going to be able to fulfill my existing contract, and get honorably discharged.  I guess my command felt differently and decided my fate to relieve me from the Marine Corps.  From my understanding, it was stated at my summary Court Martial, I was to serve brig time, loose rank, but I would be able to fulfill my full existing contract and remain in the Corps.  I hope with graceful consideration, if the Board sees fit and I am allowed to become the responsible Marine that I should have been before.
As of now, I have proven myself to be loyal in the civilian world.  I am now an Emergency Medical Responder for Coastline Care of Kenansville.  I transport dialysis patients to and from the hospital and or home.  I am faithful in my work, and love my patients.  I have completed courses in emergency medicine to further my education in the medical field.  I work when asked, whether it is early, late or on my day off.  Dedication is the key to success and I feel that I am more dedicated to be a great success in life now.  more than ever.

Sincerely,

R_ M_ O_ (Applicant)

Additional issues submitted by Applicant’s counsel/representative (VETERANS OF FOREIGN WARS):

“2.  We concur with the Applicant contentions that his discharge be upgraded.  We refer this case to the Board for their careful and compassionate consideration and request the Applicant’s discharge be reviewed for upgrading his discharge to general discharge.”

Documentation

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

Applicant’s DD Form 214
Character Reference dated March 24, 2003
Character Reference Letter from Evangelist M__ J___

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		960822 - 970629	COG

Period of Service Under Review:

Date of Enlistment:  970630		Date of Discharge:  010319

Length of Service (years, months, days):

	Active:    03  08  20
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  11			AFQT:  94

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.3 (8)			Conduct:  3.2 (8)

Military Decorations:  None

Unit/Campaign/Service Awards:  LOA

Days of Unauthorized Absence:  116

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.6.

Chronological Listing of Significant Service Events:

990414:	Counseled for deficiencies in performance and conduct.  [Issuing checks that you did not have sufficient funds to cover.  You have issued a check totaling $55.00 without sufficient funds resulting in a bounced check.  You were taken to court for this at which time you made arrangements with the court to make payments.  You were to make a payment on Feb 15th and March 1st.  You did not make either.  This has resulted in your arrest and subsequent arrangement for bail a debt of $175.00.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990512:	NJP for violation of UCMJ, Article 86: UA 0545, 990503 from appointed place of duty (PT formation), violation of UCMJ, Article 91: Disobeying a lawful order 1400, 990507 willfully disobeyed an order from Cpl P___ to put the landing leg up before moving the water bull; violation of UCMJ, Article 108: Willfully damage a water bull by not putting the landing leg up before moving it.
	Award:  CCU for 21 days, reduction to E-2 (suspended for 6 months).  No indication of appeal in the record.

990711:	NJP imposed and suspended on 990512 for a period of 6 months is hereby vacated and the punishment is ordered executed.

001031:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 86 (4 Specifications), .
	Specification 1: UA from HQSPTBN, SOI, TRNG CMD, Camp Lejeune 000319 until 000712 (116days), Specification 2: UA from HQSPTBN, SOI, TRNG CMD, Camp Lejeune 0731, 000814 until 1300, 000814, Specification 3: UA from HQSPTBN, SOI, TRNG CMD, Camp Lejeune 0615, 000911 until 1300, 000911, Specification 4: UA from HQSPTBN, SOI, TRNG CMD, Camp Lejeune 0731, 001024 until 1300, 001024.  Charge II: violation of the UCMJ, Article 92: Failure to obey a lawful order given by a NCO to report to the Platoon Sergeant
	Finding:  to Charge I and specification 1 thereunder, guilty.  Specification 2, 3, and 4 thereunder charge I, not guilty.  To Charge II and specification thereunder, not guilty.
	Sentence:  Forfeiture of $670.00, reduced to E-1, confinement for 30 days.
	CA action 001120:  Sentence approved and ordered executed.

001206:	Counseled for deficiencies in performance and conduct.  [Your unauthorized absence from your appointed place of duty from 000319 to 000719.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

001218:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

001218:	Applicant advised of 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.

010205:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  The factual basis for this recommendation was your commission of a serious offense due to your Summary Court-Martial conviction on 001031.

010305:	SJA review determined the case sufficient in law and fact.

010312:	GCMCA, CG MCB, CLNC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010319 under other than honorable conditions for misconduct due to the commission of a serious offense (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 Applicant contends that he “deserves as good a discharge and RE Code as anyone that has been discharged from the military.”  When the service of a member of U.S. Marine Corps has been honest and faithful, it is appropriate to characterize that service as honorable.  An Under Other Than Honorable Conditions discharge 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 a long-term unauthorized absence of  116 days.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

Concerning a change in reenlistment code, 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.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

Issue 2.  The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and/or the reason for discharge if such change is warranted.  There is no evidence of impropriety or inequity in the Applicant’s discharge.  The Applicant’s misconduct is clearly documented.  Therefore, relief is denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time.  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 January 1997 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 [ e.g., Article 86, unauthorized absence for more than 30 days].

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