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

  ex-PFC, USMC
Docket No. MD03-01228

Applicant’s Request

The application for discharge review was received on 20030710.  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 review.  The Applicant listed the Veterans of Foreign Wars as his representative on the DD Form 293.  In the acknowledgement letter the applicant was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal hearing in the Washington, D. C. area.  No respond was received.

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-Pattern of misconduct (with administrative discharge board), authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I don’t think that I was given the opportunity to present my side of the case.
    I feel that I could have served the balance of my time honorably if given the chance.”

Additional issues submitted by Applicant’s counsel/representative (VETERANS OF FOREIGN WARS):

2.  “ We concur with the Applicant’s contention that his discharge be upgraded.”

Documentation

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

Applicant’s DD Form 214
Character reference from Pastor R_ G_
21 Pages from Applicant’s service record
4 Pages from Applicant’s medical record
Questionnaire about military service with cover sheet (3 pp.)
DVA letter to Applicant
Letter to NCPB from VFW

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		860828 - 860922	COG

Period of Service Under Review:

Date of Enlistment:  860923		Date of Discharge:  891103

Length of Service (years, months, days):

	Active:    03  01  11
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  51

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (9)			Conduct:  4.2 (9)

Military Decorations:  None

Unit/Campaign/Service Awards:  LoA (2)

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:

870725:	Counseled for deficiencies in performance and conduct.  [Going from appointed place of duty and disobeyed the lawful command of 2ndLt B_.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

871026:	NJP for violation of UCMJ, Article 86 (2 specs):
Specification 1: UA from 1800-1930, 871014 for wall locker inspection.
Specification 2: Fail to go to rifle range run on 871015.
Awarded forfeiture of $100.00, restriction and extra duties for 7 days.  Not appealed. 

880105:	NJP for violation of UCMJ, Article 92: At 0800, 871217 failed to render appropriate honors during morning colors; violation of UCMJ, Article 89: Disrespectful to Capt. T_ by failing to address her as “Ma’am;” violation of UCMJ, Article 90: Disobeyed order of Capt. T_ to come to attention.
Awarded forfeiture of $178.00, restriction and extra duties for 14 days.  Not appealed.

880219:	NJP for violation of UCMJ, Article 86: Fail to go to evening formation on 880204.
Awarded forfeiture of $182.00, restriction and extra duties for 14 days.  Appealed.  No indication on appeal decision.

880929:	Counseled for deficiencies in performance and conduct.  [Military disciplinary infraction.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

890725:	NJP for violation of UCMJ, Article 86: UA from place of duty at 2330, 890720; violation of UCMJ, Article 90: Disobeyed 2ndLt B_ to stand phone watch on 890720.
Awarded forfeiture of $391.00 per month for 2 months (suspended for 6 months), restriction for 30 days, reduction to PFC.  Not appealed.

890801:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and due to minor disciplinary infractions as evidenced by four nonjudicial punishments.

890803:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

890803:	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 four nonjudicial punishments.

890825:	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.

890825:	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.

890919:	SJA review determined the case sufficient in law and fact.

890920:	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 19891103 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).

Issues 1 and 2.  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 four 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.  The Board found no indication the Applicant was denied any right concerning his processing for administrative separation.  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.

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 commissioned officer; Article 90, disobedience to a commissioned officer; and Article 92, disobey a lawful order.

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