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

  ex-Pvt, USMC
Docket No. MD03-01185

Applicant’s Request

The application for discharge review was received on 20030627.  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-Pattern of misconduct (with administrative discharge board), 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:

Applicant’s DD Form 214
Ten pages from Applicant’s service record
Character reference from N_ N_, ARNP
Character reference from R_ J. S_, MEd, Ed S, CM
Letter from Applicant

PART II - SUMMARY OF SERVICE

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

	Active:    None
	Inactive: USMCR(J)		900130 - 900528	COG

Period of Service Under Review:

Date of Enlistment:  900529		Date of Discharge:  940209

Length of Service (years, months, days):

	Active:    03  08  12
	Inactive:  None

Age at Entry:  22			Years Contracted:  4 

Education Level:  12			AFQT:  32

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0 (6)			Conduct:  3.8 (6)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, MUC

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct-Pattern of misconduct (with administrative discharge board), authority:  MARCORSEPMAN Par. 6210.3.

Chronological Listing of Significant Service Events:

910228:	Counseled for deficiencies in performance and conduct.  [Lack of attention to detail, lack of responsibility, failure to follow directions, and lack of maturity.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

910627:	Counseled for deficiencies in performance and conduct.  [Improper and unsafe operating of a government vehicle, resulting in a backing accident between two MK48/14s.  Poor judgment, lack of self discipline and misconduct.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

910708:	NJP for violation of UCMJ, Article 134:  Wrote 8 personal checks with insufficient funds to OWAX totaling $1222.00.
Awarded forfeiture of $197.00 (suspended for 2 months), restriction and extra duties for 14 days.  Not appealed.

920402:	Counseled for deficiencies in performance and conduct.  [Lack of integrity and failure to maintain uniform articles.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920529:	Counseled for deficiencies in performance and conduct.  [Substandard performance.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920622:	NJP for violation of UCMJ, Article 86: UA from 0700-0715, 920612; violation of UCMJ, Article 134: Wrongfully appeared at battalion formation with dirty Charlie uniform; violation of UCMJ, Article 92: Derelict as a motor vehicle operator in causing an avoidable accident; violation of UCMJ, Article 91: Disrespectful to SSgt W_; violation of UCMJ, Article 117: Wrongfully used provoking words to Cpl K_; violation of UCMJ, Article 91: Willfully disobeyed SSgt N_’s order to stand at attention.
Awarded forfeiture of $400.00, restriction and extra duties for 30 days, and reduction to PFC.  Not appealed.

920626:	Counseled for deficiencies in performance and conduct.  [Articles 86, 91, 92, 117, 134 and your frequent involvement with military/civilian authorities.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

921014:	Counseled for deficiencies in performance and conduct.  [Assignment to weight control.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

921203:	Counseled for deficiencies in performance and conduct.  [Writing a dishonored check for $154.55.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

921211:	Counseled for deficiencies in performance and conduct.  [Lack of attention to detail, lack of responsibility, failure to follow directions, and lack of maturity concerning losing two meal cards.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

921224:	Counseled for deficiencies in performance and conduct.  [Frequent involvement of a discreditable nature with military authorities.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

921229:	NJP for violation of UCMJ, Article 86: UA from remedial PT on 921223 and 921224. 
Awarded forfeiture of $205.00, restriction and extra duties for 14 days.  Not appealed.

930405:	Counseled for deficiencies in performance and conduct.  [Failure to properly maintain uniform articles and frequent involvement with military/civilian authorities.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

930618:	CSACC assessed Applicant as alcohol dependent.  Recommended Level II treatment.

930723:	VA treatment in conjunction with discharge authorized this date.

930806:	Summary Court-Martial.
Charge I:  violation of the UCMJ, Article 86 (3 Specifications):
	Specification 1: UA from place of duty at 0550, 930503.
	Specification 2: UA from place of duty at 0730, 930601. 
	Specification 3: UA from place of duty at 0650, 930604.
	Charge II:  violation of the UCMJ, Article 89:
	Specification: Disrespectful to 2Lt M_ on 930603.
Charge III:  violation of the UCMJ, Article 91 (3 Specifications):
	Specification 1:  Disrespectful to Cpl G_ on 930507.
	Specification 2:  Disrespectful to SSgt M_ on 930603.
	Findings:  to Charge I and specifications 1-3 thereunder, guilty.  To Charge II and specifications thereunder, not guilty.  
	Sentence:  Confinement for 21 days, reduction to Pvt, and forfeiture of $543.00.
		CA 930816:  Sentence approved and ordered executed.

931006:	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 six page 11 entries, three NJPs, and a summary court martial conviction.

931012:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

931019:	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 six page 11 entries, three NJPs, and a summary court martial conviction.

931123:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to a pattern of misconduct, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

931208:	Applicant requested enrollment in a VA drug and alcohol rehabilitation treatment program in conjunction with discharge.

931223:	SJA review determined the case sufficient in law and fact.

940119:	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 19940209 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, one summary court-martial and adverse counseling entries on other occasions.  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 P1900.16D), effective 27 Jun 89 until 17 Aug 95.

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 89, disrespect to a superior commissioned officer; Article 91, disrespect to a SNCO; Article 92, disobey a lawful order; Article 117, provoking gestures; and Article 134, insufficient funds.

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