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

  ex-LCpl, USMC
Docket No. MD03-01202

Applicant’s Request

The application for discharge review was received on 20030707.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a documentary record discharge 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 20040430.  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.  “TOO SEVERE OF A PUNISHMENT, DISCHARGE & RE-ENTRY CODE CONSIDERING CHAIN OF COMMAND FAILED TO COMMUNICATE SITUATION TO OTHERS IN CHARGE.
(2nd Paragraph/Statement of Events Page 1)”

Documentation

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

Applicant’s statement, dated June 11, 2003
Statement of events, dated June 14, 2003
Letter of recommendation, dated June 13, 2003

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		970912 - 980621	COG

Period of Service Under Review:

Date of Enlistment:  980622		Date of Discharge:  010821

Length of Service (years, months, days):

	Active:    03  02  00	Does not exclude lost time
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  33

Highest Rank:  Cpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.1 (8)			Conduct:  4.1 (8)

Military Decorations:  None

Unit/Campaign/Service Awards:  AFEM, HSM, SSDR

Days of Unauthorized Absence:  2

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:

010306:	NJP for violation of UCMJ, Article 92:
Specification: Violate Base Order 5800.2H by wrongfully driving a vehicle on base without a drivers license or base registration.
Awarded forfeiture of $332.00 per month for 1 month, restriction for 14 days.  Not appealed.

010306:	Counseled for deficiencies in performance and conduct.  [Lack of judgment and failure to obey Base Order 5800.2H by wrongfully driving a vehicle on base without a drivers license or base registration.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010405:	NJP for violation of UCMJ, Article 86:
Specification: Absent from unit from 0700, 010402 to 0600, 010405 (2 days).
Awarded forfeiture of $350.00 per month for 1 month, restriction for 14 days.  Not appealed.

010405:	Counseled for deficiencies in performance and conduct.  [Unauthorized absence from 010402 to 010405.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

010411:	NJP for violation of UCMJ, Article 92:
Specification 1: Fail to obey lawful written order, to wit: MCO 1700.28 dated 970618, not to engage in hazing or consent to acts of hazing, and order which was his duty to obey, did on 010112 to 010202.
Specification 2: Derelict in the performance of duties in that he negligently failed to stop the hazing of a Marine on 010112 to 010202.
Violation of UCMJ, Article107:
Specification: Make an official statement to Captain on 010310.
Awarded forfeiture of $653.00 per month for 2 months, restriction and extra duties for 45 days, reduction to LCpl.  Forfeiture suspended for 6 months.  Not appealed.

010628:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

010628:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

010706:	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 your two 6105 entries and your misconduct as evidenced by your two nonjudicial punishments.  [Marine CO’s must list specific reasons for separation, not just “by reason of misconduct due to drug abuse”.]

010730:	SJA review determined the case sufficient in law and fact.

010808:	GCMCA [Commanding General, 1st Marine Division (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 20010821 under other than honorable conditions for misconduct due to a pattern of misconduct (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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 (C and D).

Issue 1.   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.  He was notified that by waiving his rights and accepting an other than honorable discharge, he could possibly encounter significant difficulties in obtaining employment and other benefits.  The Applicant was afforded the appropriate due process during the processing of his case.  

Concerning reenlistment, 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.  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.  

C.  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.

D.  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