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

 ex-PVT, USMC
Docket No. MD03-01027

Applicant’s Request

The application for discharge review was received on 20030516.  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 did not list any 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. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1.  The reason for requesting assistance concerns my military records dating back to 1998.  As my military record shows I spent 3 years of active duty in the United States Marine Corps, most of which was spent in the Security Forces division.  While stationed at Sasebo, Japan, a situation occurred causing me to leave the armed forces under an “Other Than Honorable Discharge”.  As a result of the situation, this caused a blemish on my criminal history and as you can see it shows a criminal record from Washington, DC.  At the time of the incident, I was misinformed and under the impression that no charges would be lodged as long as I agreed to an “Other Than Honorable Discharge”, especially since no local criminal were lodged in Japan.  As you can see, my records now reflect criminal charges.  The main reason for this request concerns my ability to possess a sporting arm.  I come from a long history and family tradition of hunting and competitive shooting; however, as a result of this blemish, I am not permitted by law to own or even posses a firearm for life.  I was advised to take this measure first, as per Congressman C___ W___, so that I may then pursue addressing the criminal charges.  I would like to thank you in advance for your assistance and time in this matter and ask that you contact me with any other questions or comments. ”

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		941120 - 950926	COG

Period of Service Under Review:

Date of Enlistment:  950927		Date of Discharge:  980303

Length of Service (years, months, days):

	Active:    02  05  07
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  55

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0 (7)			Conduct:  3.8 (7)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Marksman, Pistol Sharpshooter, NDSM, OSR, MUC

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:

961219:	NJP for violation of UCMJ, Article 92 (2 Specifications):
Specification 1: On 961211 you did consume alcohol at PW-47, TPU Bks , while under the age of 20 years old, which is in violation of Marine Barracks Policy Letter 4-96, Specification 2: On 961211 did consume hard alcohol at PW-47, TPU Bks, which is in violation of Barracks Order 10000.2G.  Violation of UCMJ, Article 134: (2 Specifications): Specification 1: Drunk and disorderly on 961211 due to excessive consumption of alcohol, Specification 2: Found unfit for performance of duty on 961212 due to over consumption of alcohol. 
Awarded forfeiture of $237.00 pay per month for 1 month (suspended for 1 month), restriction and extra duties for 14 days.  Not appealed.

970506:	Counseled for deficiencies in performance and conduct.  [Article 92 at MarBks JA Detachment Sasebo, JA on 970428 you did violate CFAS MSG by breaking base curfew.  Article 92 at MarBks JA Detachment Sasebo, JA on 970428 you did violate CFAS Instruction by using fireworks in Sasebo City.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

970506:	NJP for violation of UCMJ, Article 92: (2 Specifications): 
Specification 1: Willfully disobeyed lawful written order by not returning to base prior to expiration of the imposed curfew, Specification 2: Willfully disobeyed a lawful written order by possessing fireworks in Sasebo City. 
Awarded forfeiture of $244.00 per month for 1 month (suspended for 6 months) , restriction and extra duties for 10 days.  Not appealed.

970707:	NJP for violation of UCMJ, Article 92: At Maebata Ordinance Facility, Sasebo, JA on 960621 was found asleep while posted as main gate sentry.
Awarded Restriction and extra duties for 45 days (15 day restriction and 15 days extra duty suspended for 6 months), reduction to E-2.  Not appealed.

971218:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 80: At MarBks, JA, Det Sasebo, on or about 971014, attempt to steal a car.  Charge II: violation of the UCMJ, Article 109: At MarBks, JA, Det Sasebo, on or about 971014, willfully and wrongfully damage a car.  Charge III: violation of the UCMJ, Article 121: At MarBks, JA, Det Sasebo, on or about 971014, attempt to steal a cellular phone and a tool box, of a value of about $400.00.  Charge IV: violation of the UCMJ, Article 134: At MarBks, JA, Det Sasebo, on or about 971014, was drunk and disorderly.
	Finding:  to Charge I, II, III and IV, and the specifications thereunder, guilty.
	Sentence:  Confinement for 28 days, forfeiture of $600.00, reduced to E-1.
	CA action 971218:  Sentence approved and ordered executed.

980112:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

980113:	Applicant advised of his rights and having elected not 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.

980114:	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 on 961219 you were given NJP for violation Article 92 and 134 of the UCMJ, the specific charges against him were Article 92, two specifications of drinking underage, Article 134, drunk and disorderly, and Article 134, was found unfit for the performance of his duties due to over consumption of alcohol.  On 970506, you were given NJP for violation of Article 92 of the UCMJ, the specific charges against him were Article 92, that he violated a lawful written order by not returning to base prior to expiration of the impose curfew and that he possessed fireworks in Sasebo City.  On 970702 he was given NJP for violation of the UCMJ, the specific charge against him was that he was found asleep while posted as main gate entry.  971218 he was convicted at a Summary Court Martial for violation of Articles, 80, 109, 121, and 134 of the UCMJ, the specific charges against him were Article 80, that he on or about 971014, did attempt to steal a car, Article 109, that he willfully and wrongfully damage a car, Article 121, that he stole a cellular phone, and a tool box, of a value to $400.00, Article 134, he was drunk and disorderly.  

980203:	SJA review determined the case sufficient in law and fact.

980205:	GCMCA [Commander, Marine Forces Pacific] 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 19980303 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.  When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  The Applicant contends that while stationed at Sasebo, Japan, “a situation occurred causing me to leave the armed forces under an “Other Than Honorable Discharge”.”  The applicant was discharged, however, for a pattern of misconduct. The applicant’s service was marred by the award of non-judicial punishment (NJP) on 3 occasions for violations of the Uniform Code of Military Justice (UCMJ) and a Summary Court-Martial conviction.  An upgrade to honorable would be inappropriate.  

The Applicant's other than honorable discharge was proper and equitable.  The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted.  There is no evidence of impropriety, inequity or procedural irregularities in the Applicant's discharge.  The Applicant's misconduct is clearly documented.  He acknowledged and waived his rights to administrative review.  The Applicant was afforded the appropriate due process during the processing of his case.  Relief is therefore denied.

Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment, educational opportunities or in order to own firearms, as requested in the issue.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  Relief 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 her 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 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 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