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

 , ex-Pvt, USMC
Docket No. MD03-01360

Applicant’s Request

The application for discharge review was received on 20030808.  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 20040514.  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, E_ D_ W_, swear that all these statements are true.

    I served over two and a half years in the Marine Corps before working under my last command.  In those two and a half years I received one Non Judicial Punishment.  After that I went a little over two years without an incedent.  As you know commands change after every deployment.  Well my new command and I didn’t mix.  My mother lost her job and I asked my platoon commander could I get a side job to help her out.  I was denied.  As I kept asking and my personal problems started effecting my work.  My command had begun to use every mistake I made against me as a reason why I couldn’t get another job.  I’m an only child, its always been my mother and I.  I was the man of the house.  When I found out my mother was three months behind in rent, there was no way I could do my job effectively.   As a lance Corporal with a child there was no way I made enough to help her.  Mentally I wasn’t there.  My command sent the camp guard in my room with M-16’s and handcuffs to place me under arrest.  Because I wasn’t in formation, I knew nothing about.  They would do little things like that to make me look bad.  My aunt who is an attorney had to threaten to come to see what was going on and possibly have charges brought up.  Because at that point my family feared for my life.  So I ask you to review my records.  Then ask yourself how does a Marine who goes over 2 years without an incident, all of a sudden becomes a trouble maker. 
Another thing I would like to bring up.  I was sent to a Correctional Custody Unit.  When my command was informed, I had very high blood pressure.  This was another attempt to break me and make me look bad.  But I was released early, because the command there said my performance and character was outstanding.  So I ask you to please review my record with an open and honest mind.

Thank you,”

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)		981021 - 981117	COG

Period of Service Under Review:

Date of Enlistment:  981118		Date of Discharge:  020628

Length of Service (years, months, days):

	Active:    03  07  11
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  63

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.0 (1)			Conduct:  2.0 (1)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, AFEM, SSDR

Days of Unauthorized Absence:  2

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:

991006:	NJP for violation of UCMJ, Article 91: Disrespectful to Cpl P_ on 990903.
Awarded forfeiture of $260.00 (suspended for 6 months), restriction and extra duties for 14 days.  Not appealed.

991006:	Counseled for deficiencies in performance and conduct.  [Recent office hours.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000320:	UA this date. [Extracted from DD Form 214]

010514:	Counseled for deficiencies in performance and conduct.  [Failure to report to place of duty as directed which resulted in being dropped from the rifle detail.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010731:	NJP for violation of UCMJ, Article 92 (2 specs):
Specification 1: Failing to appear before the Base Magistrate on 010723.
Specification 2: Driving on base suspension and failing to register his POV. 
Awarded forfeiture of $304.00, restriction and extra duties for 14 days.  Not appealed.

010831:	NJP for violation of UCMJ, Article 86: UA from 0530, 010823 to 0630, 010824.
Awarded restriction and extra duties for 45 days, reduction to PFC.  Not appealed.

011109:	NJP for violation of UCMJ, Article 92: Failed to fall out for platoon formation.
Awarded forfeiture of $521.00 per month for 2 months (suspended for 6 months), restriction for 3 days, 27 days CCU, and reduction to Pvt.  Not appealed.

020220:	Counseled for deficiencies in performance and conduct.  [Continued disregard for authority and lack of discipline.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020222:	NJP for violation of UCMJ, Article 92: Driving on base revocation. 
Awarded forfeiture of $552.00 for 2 months, restriction and extra duties for 45 days.  Not appealed.

020408:	Counseled for deficiencies in performance and conduct.  [Pattern of misconduct.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020408:	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 constant disciplinary infractions.

020408:	Applicant advised of his rights and having consulted 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.

020424:	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 five nonjudicial punishments and a pattern of indifference to authority.

020525:	SJA review determined the case sufficient in law and fact.

020605:	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 20020628 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 five 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.  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.  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; Article 91, disrespect to a NCO; 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