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

ex-Pvt, USMC
Docket No. MD05-00272

Applicant’s Request

The application for discharge review was received on 20041115.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance review before a traveling panel closest to the Harrisburg Area.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the National Capital Region.  The NDRB also advised that the Board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050214.  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.  “My discharge was unfair because the command kicked me out when they didn’t think they could (or tried and failed to) convict me at the court-martial level.  I was told by my CO that the regimental commander didn’t want to see me. There also was people discharged in my unit with a general discharge under Honorable Conditions that were UA and failed drug tests.  There were different drug tests redone in my unit because of Officers down to PVT’s failed a lot of tests.  The High number of failures resulted in a retest.  These occurrences went on for weeks.  My drinking and immaturity and the time didn’t prohibit me from being a Marine and serving the country.  I would like an upgrade for serving with pride in my country.  Keeping the USMC reputable in my life.”

Applicant marked the box "I HAVE LISTED ADDITIONAL ISSUES AS AN ATTACHMENT TO THIS APPLICATION."  None were found.

Documentation

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

None were submitted

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		990423 - 990428	COG

Period of Service Under Review:

Date of Enlistment:  990429		Date of Discharge:  020104

Length of Service (years, months, days):

	Active:    02  08  06
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  50

Highest Rank:  PFC			MOS:  0621

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.9 (6)			Conduct:  3.5 (6)

Military Decorations:  None

Unit/Campaign/Service Awards:  REB (2d)

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:

990930:	NJP for violation of UCMJ, Article 92:
Specification: Violate ScolO 1700.4D, underage drinking on 2145, 990831.
Awarded forfeiture of $479.00 per month for 1 month, restriction and extra duties for 45 days, reduction to E-1.  Restriction and extra duty for 45 days suspended for 30 days, reduction suspended for 6 months.  Not appealed.

990930:	Counseled for deficiencies in performance and conduct.  [Failure to conform to Marine Corps standards, specifically my recent NJP for violations of Article 92 of the UCMJ.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000113:	Counseled for deficiencies in performance and conduct.  [My alcohol related incident specifically, consuming alcohol while under the age of 21 and operating a motor vehicle.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000121:	Vacate suspended reduction awarded at CO’s NJP 990930.

000121:	Counseled for deficiencies in performance and conduct.  [On 000119 Applicant had an appointment with A.T.F. at 0830.  Applicant failed to make this appointment.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010109:	Counseled for deficiencies in performance and conduct.  [Unauthorized absence from section PT.  Specifically you were UA from section PT at 0530 on 010109 and did stay UA until 0730.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010112:	NJP for violation of UCMJ, Article 92:
Specification: Disobey an order from GySgt G_, SSgt M_ and Sgt Q_ from September 2000 to November 2000, by driving his vehicle since it did not have vehicle registration, base registration, and vehicle insurance.
Awarded forfeiture of $263.00 per month for 1 month.  Forfeiture suspended.  Not appealed.

010514:	NJP for violation of UCMJ, Article 92 (2 specs):
Specification 1: Violate a lawful general order on 010409, to wit: by wrongfully violating speed regulations on board MCB Camp Lejeune.
Specification 2: Violate a lawful general order on 010419, to wit: BO P5560.2, by wrongfully driving while intoxicated on board MCB Camp Lejeune.
Awarded forfeiture of $521.00 per month for 2 months, restriction and extra duties for 21 days, reduction to E-1.  Forfeiture suspended for 6 months.  Not appealed.

010514:	Counseled for deficiencies in performance and conduct.  [Failure to obey BO P5560.2K by operating a POV on board Camp Lejeune at excessive speeds and driving under the influence of alcohol.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010801:	NJP for violation of UCMJ, Article 92:
Specification: Operate a POV while on suspension aboard Camp Lejeune, NC.
Violation of UCMJ, Article 134:
Specification: Break restriction on 010603.
Awarded forfeiture of $521.00 per month for 2 months, restriction and extra duties for 45 days.  Not appealed.

010822:	Applicant notified of intended recommendation for discharge by reason of misconduct due to a pattern of misconduct.  The least favorable characterization of service possible is under other than honorable.

010822:	Applicant advised of 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.

010905:	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 based specifically on the characterization of his service as documented by his chain of command character statements and his service record book.  

011218:	SJA review determined the case sufficient in law and fact.

011222:	GCMCA [Commanding General, 2d Marine Division, II Marine Expeditionary Force, Camp Lejeune, NC] 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 20020104 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 four occasions for disobedience of lawful orders and breaking restriction.  In addition, the Applicant’s conduct evaluation average, which forms the primary basis for determining the character of his service, falls short of that required for an honorable characterization of service.  While he may feel that his immaturity at the time and alcohol use were factors 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 Board discerned nothing to support the Applicant’s allegations that he was treated unfairly by his chain of command.  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 inequity or impropriety must have existed during the period of enlistment in question.  No such inequity or impropriety 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 P1900.16F), effective 01 Sep 2001 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 92, disobey a lawful order; and Article 134, break restriction.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		Secretary of the Navy Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023