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

  ex-Pvt, USMC
Docket No. MD03-01152

Applicant’s Request

The application for discharge review was received on 20030618.  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 20040514.  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

No issues were submitted by the Applicant. 

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:   
	Inactive: USMCR(J)		970620 - 980614	COG

Period of Service Under Review:

Date of Enlistment:  980615		Date of Discharge:  010601

Length of Service (years, months, days):

	Active:    02  11  17
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  35

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (8)			Conduct:  3.6 (8)

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, authority:  MARCORSEPMAN Par. 6210.3.

Chronological Listing of Significant Service Events:

990611:	NJP for violation of UCMJ, Article 86 (2 specs):
Specification 1:  UA from Battalion Safety School on 990522.
Specification 2:  UA from Battalion PT Formation on 990526.
Awarded forfeiture of $539.00, restriction and extra duties for 14 days (suspended for 6 months).  Not appealed.

990730:	NJP for violation of UCMJ, Article 91: Insubordinate toward noncommissioned officer on 990629; violation of UCMJ, Article 92: Driving while on base suspension on 990624.
Awarded forfeiture of $536.00 per month for 2 months, restriction and extra duties for 45 days.  Not appealed.

991209:	Summary Court-Martial.
		Charge I. Violation of UCMJ, Article 91 (4 specs):
		Specification 1:  Disrespectful to Sgt L_, Cpl S_, and Cpl M_.
		Specification 2:  Disrespectful to Cpl S_.
		Specification 3:  Disobey a lawful order from Sgt L_.
		Specification 4:  Disrespectful to Sgt L_.
		Charge II.  Violation of UCMJ, Article 134:
		Specification:  Wrongfully communicate a threat.
		Findings: To all charges and specifications, guilty.
	Sentence: Forfeiture of $639.00, confinement for 30 days, reduction to 
Pvt.
991223: CA action.  Confinement suspended for 12 months.

010410:	Counseled for deficiencies in performance and conduct. [Pattern of misconduct.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010410:	Counseled for deficiencies in performance and conduct. [Pattern of misconduct.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010413:	NJP for violation of UCMJ, Article 92 (2 specs):
Specification 1:  Driving while on base suspension on 010406.
Specification 2:   Wrongfully left company office at 1230, 010411 after being told by GySgt not to.
Violation of UCMJ, Article 107 (3 specs):
Specification 1:  Lied to GySgt about who was on the phone at 1230, 010411.
Specification 2:  On 010411, signed an official record with intent to deceive, to wit: reinstatement of base driving privileges.
Specification 3:  Make statements to 1stSgt and SSgt with intent to deceive on 010411.
Violation of UCMJ, Article 123: Falsely altered official document reinstating base driving privileges.
Awarded forfeiture of $482.00 per month for 2 months, restriction and extra duties for 45 days; reduction to Pvt.  Not appealed.

010510:	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 your documented offenses.

010510:	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.

010510:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  

010521:	SJA review determined the case sufficient in law and fact.

010524:	GCMCA [CG, 1st FSSG] 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 20010601 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).

The Applicant introduced no decisional issues for consideration by the Board.  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 a summary court-martial.  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.  An upgrade is inappropriate.  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; Article 107, false official statements; Article 123, forgery; and Article 134, communicate a threat.

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