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

  ex-Pvt, USMC
Docket No. MD03-01178

Applicant’s Request

The application for discharge review was received on 20030626.  The Applicant requests the characterization of service received at the time of discharge be changed to entry level separation or uncharacterized and a reentry code change to “RE-3.”  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.  Unfortunately, my immature actions caught up with me.  “I was just hanging with the wrong Marines doing unhonrable things.  I’m not stupid, I know what it takes to be a Marine.  There’s absolutely nothing I could do to change my past actions, however I’m prepared and determined to prove to the Marine Corps, my country and my-self that I’m competent enough to stand guard for my Nation.  Becoming a Marine was the highlight of my life, but after losing that position made me realize that my attitude must be adjusted to take orders and carry out missions.  I have unprecedented respect for all branches but my branch is the Marine Corps to whoever that concerns.  I’m asking that my other than honorable discharge be reconsidered.  Maybe removing me from the situation was a great one but moving me out of the military wasn’t the best in everyone interests.  I think now that I have continuously worked mentally as well as physically to better myself as a person and a marine.  Now I’m back to reclaim my title as a U.S. MARINE.

Sincerely S_ B_”

Documentation

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

Copy of DD Form 214
Letter from S_ B_ undated

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		000807 - 001105	COG

Period of Service Under Review:

Date of Enlistment:  001106		Date of Discharge:  020821

Length of Service (years, months, days):

	Active:    01  08  23
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  12			AFQT:  32

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (3)			Conduct:  4.2 (3)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, OSSR

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:

010517:	Counseled for deficiencies in performance and conduct.  [Your misconduct for violation of article 92, disobedience of a lawful order.  Specifically you were wearing civilian clothes during a time when required to be uniform.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010705:	Counseled for deficiencies in performance and conduct.  [Your misconduct for violation of article 134, specifically impersonating a Non-Commissioned Officer.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

011018:	NJP for violation of UCMJ, Article 91 (1 spec):
Specification 1:   Disobedience to a lawful order from an NCO to place a drain plug in a water bull and to not wear PT gear while operating a 5-ton vehicle.
Awarded forfeiture of $272.00 per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

020401:	Counseled for deficiencies in performance and conduct.  [Your conduct while impersonating a Staff Noncommissioned Officer.  On or about 14 March 2002, you willfully and wrongfully identified yourself to medical personnel as a Staff Sergeant, with the intent to deceive them in an attempt to get them to comply with your demands to speak to another Marine.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020712:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 89
	Specification: Disrespect toward a commissioned officer
	Charge II:  violation of the UCMJ, Article 91
	Specification: Disrespect toward a staff noncommissioned officer
	Charge III: violation of the UCMJ, Article 128
	Specification:  Assault consummated by a battery
	Charge IV:  violation of the UCMJ, Article 134
	Specification I:  Drunk and disorderly conduct
	Specification II:  Impersonating a staff noncommissioned officer

	Findings:  to all charges and specifications thereunder, guilty.
	Sentence:  Forfeiture of $681.00, reduced to E-1, conf 30 das.
		CA action 000000:  Sentence approved and ordered executed.

020717:	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 repeated incidents of misconduct.

020717:	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.

020718:	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 Applicant’s constant pattern of misconduct throughout his current enlistment.  Commanding officer’s comments: [His negative and anti-social behavior are direct manifestations of his maladaptation to Marine Corps life and non-acceptance of our Core Values].

020808:	SJA review determined the case sufficient in law and fact.

020812:	GCMCA [CG 3d MarDiv] 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 20020821 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 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 one NJP, one summary court-martial with four guilty findings and three page-11 entries.  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 denied.

By regulation, members discharged within the first 180 days of enlistment are given characterization of service "Uncharacterized" unless there were unusual circumstances regarding performance or conduct.  The Applicant served well in excess of 180 days and is therefore not eligible for an entry level separation.  Relief denied.  

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.

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 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 [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