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

  ex-Pvt, USMC
Docket No. MD03-01229

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 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.  “Upon being discharged from the US military, I (Applicant) was going through family problem at home pertaining to my wife at the time.  Due to these problems a huge mistake was made.  My wife was also having an affair with a friend of mine which caused my attitude to change.  Since my release from the military I have been separated from her and has not caused any problems.  I hope that someday this will not affect my future and thank you for taking the time to review my case.  Please excuse the handwriting.”

Documentation

In addition to the service record (THERE WAS ONLY A PARTIAL DISCHARGE PACKAGE AVAILABLE FOR REVIEW), the following additional documentation, submitted by the Applicant, was considered:

None

PART II - SUMMARY OF SERVICE

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

	Active:    None
	Inactive: USMCR(J)		940319 - 940605	COG

Period of Service Under Review:

Date of Enlistment:  940606		Date of Discharge:  961205

Length of Service (years, months, days):

	Active:    02  06  00
	Inactive:  None

Age at Entry:  17			Years Contracted:  4 

Education Level:  12			AFQT:  33

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.9 (8)			Conduct:  3.5 (8)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

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:

950731:	NJP for violation of UCMJ, Article 134: Communicate a threat to Cpl N_  that he would kick Cpl A_’s butt.
Awarded forfeiture of $248.00, restriction for 14 days (forfeiture of $200.00 and restriction suspended for 6 months).  Not appealed.

950810:	Counseled for deficiencies in performance and conduct.  [Lack of bearing, discipline, and threatening a NCO.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960812:	NJP for violation of UCMJ, Article 86: Failed to report to 1stSgt F_; violation of UCMJ, Article 91: Disrespectful to Cpl D_; violation of UCMJ, Article 92 (3 specs):
Specification 1: Failed to obey 1stSgt F_’s lawful order.
Specification 2: Failed to obey Cpl D_’s lawful order.
Specification 3: Failed to obey SSgt M_’s lawful order. 
Awarded forfeiture of $490.00 per month for 2 months, restriction and extra duties for 45 days, reduction to PFC.  Not appealed.

960923:	NJP for violation of UCMJ, Article 117: Used provoking words to Cpl W_ on 960829; violation of UCMJ, Article 91: Disrespectful to Cpl W_.
Awarded forfeiture of $204.00 per month for 2 months, restriction and extra duties for 60 days, reduction to Pvt (forfeiture, restriction and extra duties suspended for 6 months).  Not appealed.

960924:	Counseled for deficiencies in performance and conduct.  [Multiple NJPs and disrespect to a NCO.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

961127:	SJA review determined the case sufficient in law and fact.

961127:	GCMCA [CG, 1st MARDIV (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 19961205 under other than honorable conditions for misconduct due to a pattern of misconduct (A and B).  In the absence of a complete discharge package, the Board presumed regularity in the conduct of governmental affairs (C) and, after a thorough review of the records, supporting documents, facts, and circumstances unique to this case, found that the discharge was proper and equitable (D and E).

Issue 1.  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 adverse counseling entries on other occasions.  While he may feel that his wife at the time was a factor that contributed to his actions, the record clearly reflects his disregard for the requirements of military discipline and demonstrated that he was unfit for further service.  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.  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 18 Aug 95 until 30 Jan 97. 

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 117, provoking words; and Article 134, communicating 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