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

  ex-Pvt, USMC
Docket No. MD03-01124

Applicant’s Request

The application for discharge review was received on 20030612.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to service injury.  The Applicant requests a personal appearance before a traveling panel closest to Nashville, TN.  The Applicant was informed that a documentary review is conducted prior to a personal appearance hearing.  The Applicant listed W_ J. D_ from the Department of Veteran Affairs as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040415.  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 and narrative reason 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.  Overall service not given due consideration

2.  Should have been put before medical board for service incurred injury and separated w severance pay or placed on limited duty til separation.

3.  Denial of due process”

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:    None
	Inactive: USMCR(J)		980814 - 990531	COG

Period of Service Under Review:

Date of Enlistment:  990601		Date of Discharge:  011109

Length of Service (years, months, days):

	Active:    02  05  09
	Inactive:  None

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

Education Level:  12			AFQT:  66

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.6 (8)			Conduct:  3.5 (8)

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR

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:

990323:	Counseled for deficiencies in performance and conduct.  [Steal a bivy sack from Battalion Supply and failure to be at appointed place of duty.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

001003:	NJP for violation of UCMJ, Article 91: On or about 1115, 000908 was disrespectful in language toward Cpl P_.
Violation of UCMJ, Article 92 (2 Specs): Specification 1: Disobeyed order to assist in cleaning and maintenance of the barracks; Specification 2:
Disobeyed order to report for counseling.
Awarded forfeiture of $273.00, restriction and extra duties for 14 days.  Not appealed.

001223:	NJP for violation of UCMJ, Article 91:  Disrespectful to NCO by saying “I heard you the first time” and rolling his eyes.
Awarded forfeiture of $273.00 (suspended for 6 months), restriction and extra duties for 14 days.  Not appealed.

010420:	NJP for violation of UCMJ, Article 86:  Failure to be at place of duty on 0600, 010313; Violation of UCMJ, Article 121: Steal a bivy sack from battalion supply.
Awarded forfeiture of $607.00 per month for 2 months, restriction for 60 days, reduction to PFC.  Not appealed.

010820:	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 continuous violation of the UCMJ, violation of Article 91, insubordinate conduct toward a warrant officer, noncommissioned officer, or petty officer on 001020 and 001003.

010820:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

010822:	Counseled for deficiencies in performance and conduct.  [Pattern of misconduct.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010822:	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 continuous violation of the UCMJ.

011016:	SJA review determined the case sufficient in law and fact.

011022:	GCMCA [CG, 1st MARDIV (Rein)] 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 20011109 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.  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 three 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 or under honorable characterization of service.  No other narrative reason more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation.
Relief denied.

Issues 2-3.  Separation for misconduct takes precedence over possible separation for other reasons.  The Board’s regulations limit its review to a determination on the propriety and equity of the discharge.  The Board found that the Applicant was afforded all rights regarding his administrative separation.  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.  The discharge was proper and equitable.  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 NCO; Article 92, disobey a lawful order; and Article 121, larceny.

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