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

  ex-Pvt, USMC
Docket No. MD03-01295

Applicant’s Request

The application for discharge review was received on 20030724.  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 did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040504.  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, (Applicant) due believe that my discharge should be upgraded due to I was involuntarily separated from the USMC & that I had few problems while in the Marine Corps that were service related, as of job wise.  I am seeking to get my full benefits, which I have contributed too, while serving my country.  Also a return to active duty is a possible venue after I seek my education.”

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:    None
	Inactive: USMCR(J)		970407 - 970518	COG

Period of Service Under Review:

Date of Enlistment:  970519		Date of Discharge:  990721

Length of Service (years, months, days):

	Active:    02  02  03  (Does not exclude lost time)
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  62

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  NMF*			Conduct:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  NUC

Days of Unauthorized Absence:  15

*No Marks Found in the service record

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:

980309:	Counseled for deficiencies in performance and conduct.  [Underage drinking and allowing another Marine to drive while intoxicated.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990324:	Counseled for deficiencies in performance and conduct.  [Frequent involvement with spousal abuse, lack of integrity and poor judgment.  IHCA for spousal abuse and CO ordered Applicant to move into barracks and have no contact with spouse.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990427:	Counseled for deficiencies in performance and conduct.  [Lack of discipline displayed over the last 6 months.  On countless occasions been late for PT formations, checking in for duty and other situations.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990428:	NJP for violation of UCMJ, Article 86 (2 specs):
Specification 1:  UA place of duty from 0645-0710, 990330.
Specification 2:  UA from 990331 to 990414 while IHCA for conviction for domestic violence.
Awarded forfeiture of $269.00 per month for 2 months, restriction and extra duties for 45 days (restriction and one months forfeiture suspended for 6 months).  Not appealed.

990513:	Counseled for deficiencies in performance and conduct.  [Conviction and jail term for criminal domestic violence.  Sentenced to 29 days in jail.  Released on 990414 after 15 days IHCA.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990621:	Charges referred to Summary Court-Martial.
Charge I:  Violation of UCMJ, Article 107: False official statement to 1st Sgt J_.
Charge II:  Violation of UCMJ, Article 134: Break restriction on 990522.

990712:	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 a nonjudicial punishment and four adverse page 11 entries.

990712:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

990712:	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 a nonjudicial punishment and four adverse page 11 entries.

990720:	SJA review determined the case sufficient in law and fact.

990720:	GCMCA [CG, MCRD/ERR, PISC] 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 19990721 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 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.  An upgrade is inappropriate.  Relief denied.

The Veterans Administration determines eligibility for post-service benefits, not the NDRB.  There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans’ benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

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.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  

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 P1900.16E), 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.

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