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

 , ex-PFC, USMC
Docket No. MD03-01352

Applicant’s Request

The application for discharge review was received on 20030807.  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 20040526.  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 served as a Marine for 6 years.  I attained the rank of Corporal on May 1, 1997.  I loved being a marine.  Yes, I was 51 days awol and paid of it in a general court martial and was reduced to PFC.  I did not receive brig time by the court.  I made a mistake, which I truly regret.  The court did not discharge me.  My unit felt it best if I was discharged.  I wanted to stay in the Marine Corps.  My unit did discharge me.  I was never advised or notified about my separation from the U.S.M.C. until the last minute.  I went back to duties as a clerical personel and performed my duties to the utmost.  I served two more months thinking I was going to stay in.  My record has been exemplary for up to 6 years without problems as my decorations, medals, badges, citations denote my conduct.  I still love the marine corps.  I ask this honorable court change my character of service.  I could have proven myself and my unit if given the opportunity.  I was not given it!”

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:   USMC		940906 – 971024	HON
	Inactive: USMCR(J)		940823 - 940905	COG

Period of Service Under Review:

Date of Enlistment:  971025		Date of Discharge:  010427

Length of Service (years, months, days):

	Active:    03  06  03
	Inactive:  None

Age at Entry:  21			Years Contracted:  4 

Education Level:  12			AFQT:  45

Highest Rank:  CPL

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0 (9)			Conduct:  3.4 (10)

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM, SSDR, NDSM, LOA(2), COC, MM(2)

Days of Unauthorized Absence:  51

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:

971025:	Reenlisted at MAWTS-1 MCAS YUMA,YUMA, AZ for 4 years.

990902:	Counseled for deficiencies in performance and conduct.  [Alcohol related incident; specifically at 0750, 990723 being found in your assigned BEQ room during working hours intoxicated, B.A.C. unknown.  This action further resulted in your failure to be at your appointed place of duty at the time prescribed.  Conduct of this nature will not be tolerated.  You were interviewed by the Group SACO on 990804, the Station SACC on 990809 and were directed to attend the Outpatient Treatment Program commencing 990823].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

991022:	NJP for violation of UCMJ, Article 134: In that Cpl B_ on 991007 purchased alcoholic beverages for an underage Marine at an unidentified store in Yuma, AZ.  Violation of UCMJ, Article 134: In that Cpl B_ on 991007 was observed by Yuma, P.D. throwing cans out of a vehicle widow in Yuma, AZ.  Violation of UCMJ, Article 134: In that Cpl B_ on 991007 provided false information when stopped by a Yuma Police Officer stating that he had not been drinking, the officer administered a PBT test which result in BAC% of .40%.  NJP for violation of UCMJ, Article 86: In that Cpl B_ was absent from his place of duty (CPAC) from 0731 to 0745, 991012.
Awarded forfeiture of $637.00 pay per month for 2 months (suspended for 6 months), reduction to E-3.  Appealed 991028.  Appeal denied 991119.

000306:	Counseled for deficiencies in performance and conduct.  [Misconduct; specifically violation of UCMJ, Article 86 unauthorized absence from appointed place of duty to wit:  Consolidated Personnel Administration Center on 000214.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000913:	To UA.

001102:	From UA.

010307:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 86 (3 Specifications):
	Specification 1: On or about 000910, failed to go to appointed place of duty.
	Specification 2:  On or about 000910, failed to go to appointed place of duty.  
Specification 3: On or about 000913, absent himself from his organization.
	Findings:  to Charge I and specifications 1, 2, thereunder, not guilty, to specification 3 thereunder, guilty.
	Sentence:  Restriction for 14 days, reduction to E-2.
	CA 010301:  Approved foregoing pretrial agreement.

010312:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

010312:	Applicant advised of his rights and having elected 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.

010327:	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 unsatisfactory performance, special court-martial, and habitual pattern of misconduct.

010409:	SJA review determined the case sufficient in law and fact.

010417:	GCMCA [Commanding General, 3d Marine Aircraft Wing] 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 20010427 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, one special 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 (general) characterization of service.  An upgrade is inappropriate.  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.

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 134, false information.

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