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

  ex-Pvt, USMC
Docket No. MD03-01262

Applicant’s Request

The application for discharge review was received on 20030715.  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 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.  “I writing in regards or a upgrade in my discharge.

1 was an excellent radio operator. Even though I made mistakes no body is perfect. I did what every it took to be the best radio operator the Marine Corp have. Whatever I did pertaining to my job in’, superiors and my fellow marines knew they could count on me. I did my job at the best of my ability, even if that meant skipping mine personal lunch, or personal break just to get the job done. Even if that meant long nights, and days at my own will. I did what it took for the ones who did depend on me to get the job done. When it came to my job I didn’t think any one could touch me, and I believe the people who was in charge of me who say the same for me.

I had at times had problems with some of my supervisors but most of the time when they realize or found out the truth. They did apologize, and if I made a mistake I had no problem admitting to my mistakes and taking responsibilities for my actions, and if I was punish. I did what I needed to do to get over from that. I was hardly in trouble, because I was little over the average marine.

I’m asking for the upgrade because I think I had problem that the Marine Corp didn’t want to deal with. They try to make what little mistakes seem so big. My personal problem I had was ignore as well as the medical attention I ask for. I hope after evaluated my files that maybe I’ll receive a better discharge for a better future in whatever career I chose to make a career of. Thank You for taking the time to evaluate my concerns.”

Documentation

In addition to the service record, 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)		990810 - 990823	COG

Period of Service Under Review:

Date of Enlistment:  990824		Date of Discharge:  030117

Length of Service (years, months, days):

	Active:    03  04  24
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  43

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.8 (10)			Conduct:  3.3 (11)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, NUC, CC

Days of Unauthorized Absence:  105

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:

010710:	Counseled for deficiencies in performance and conduct.  [Loss of military identification card due to negligence.  Failure to be at appointed place of duty.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010802:	To UA.

010806:	From UA, to duty.

020215:	Counseled for deficiencies in performance and conduct.  [Inability to properly manage your finances.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020708:	NJP for violation of UCMJ, Article 86: UA from 0730, 020523 to 0730, 020624 (31 days).
Awarded forfeiture of $619.00 (suspended for 6 months), reduction to PFC, 45 days restriction and extra duty.  Not appealed.

020723:	Vacate suspended punishment from NJP dated 020708.

021024:	Summary court-martial:
Charge I. Violation of UCMJ, Article 86: UA from 020709 to 020917 (71 days).
Charge II. Violation of the UCMJ, Article 89: Disrespectful to Maj L_.
Finding: Guilty to Charges I and II.
Sentence: Forfeiture of $368.00, confinement for 30 days, reduction to Pvt.  
021028: CA approved sentence and ordered executed.

021118:	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 his summary court-martial and battalion non-judicial punishment.

021205:	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 and to submit a statement.

021211:	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 due to his summary court-martial and battalion non-judicial punishment.

021222:	SJA review determined the case sufficient in law and fact.

030109:	GCMCA [Commander, 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 20030117 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.  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 one occasion, a summary court-martial 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 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 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 86, unauthorized absence for more than 30 days; and Article 89, disrespect to a commissioned officer.

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