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

 ex-PFC, USMC
Docket No. MD05-00510

Applicant’s Request

The application for discharge review was received on 20050126.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge 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 20050516.  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. 6210.2.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “To whom it may concern:

I am writing this letter to request that my discharge and re-enlistment code be upgraded.  I currently have an Other than Honorable discharge with a re-enlistment code of RE-4.  I am requesting that my discharge be upgraded to Honorable and my RE code to RE-2. What follows is what I can remember of the last incident that occurred before my separation from Active Duty.

While stationed at MTACS-28, MACG28, 2DMAW, MCAS Cherry Point, NC I was on TAD orders to annual weapons requalification at the station rifle range.  On Friday, which was the last day I had to qualify, I was late for ammo issue, which was at 0530hrs.  For reasons I have yet to figure out my alarm did not go off.  The night prior I had checked it several times to make sure it was on, this I did for fear it would not go off.  I was irresponsible and did not ask the Duty NCO to insure I was awake and ready to go, a mistake that I now regret.

I awoke at 0530hrs.  Upon realizing what time it was, I did the only thing I knew to do, I went to talk to my NCOIC Cpl F_.  He wasn't sure what should be done and told me to report for scheduled work hours at 0730hrs, which I did.

After the morning report was taken, I requested to speak with my NCOIC Cpl F_ and my SNCIOC SSgt S_ in private.  The reason I requested this was to inquire what could be done in regards to my annual requalification.  They both said that they would talk to the Training Officer to see what could be done.  This was the last I heard of the incident, although I constantly asked the training section what was going on, but was told they were still trying to work something out and to check back with them.

I was then deployed to Greece for Operation Dynamic Mix.  Several days after returning from Greece I volunteered to make a run for the Squadron (I can’t remember exactly what this run was for or where it was to).  Once my NCIOC agreed to let me make the run he began to run up the chain of command in the 5-3 Section to make sure it was o.k. for me to make the run.

To the best of my memory he then went to ask my SNCOIC , who agreed with him.  She then went to speak with the Section Gunny, GySgt C_, who also gave the ok for me to go.  Gunny C_ then went to ask the operations Officer, I believe because I wasn’t in the Operations Office at this time.

The Operations Officer, Maj. C_, said I was to remain at the squadron because I was to go see the SgtMaj.  When Gunny C_ asked why I was to go, Maj C_ said he didn’t know.

Later that day, I was ordered to report to the SgtMaj.  After reporting I was informed I was being processed for Administrative Separation on the grounds of misconduct.

Upon returning to my work section, I informed my chain of command of what had just happened.  They were all just and shocked and surprised as I was.  To the best of my knowledge none of them knew that the separation actions were pending against me.

I was separated from active duty on 2000 08 11.

I have only sited this one incident because I had received an NJP and Summary Court Martial for my other two (2) violations of Article 86 of the UCMJ.  To the best of my knowledge, I received no disciplinary actions for being UA to the range.  I am unable to Reference my Page11 at this time because in the processing of moving several times in four years I have lost my copies of my Service Record Book. 

I am requesting to have my discharge and re-enlistment code upgraded so I may enlist in the Reserves, so that I may fulfill my obligation to myself, my country, my fellow Marines (past, present, and future), and myself that I feel I have yet to fulfill.

Sincerely,

S_ L. C_ (Applicant)”

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)			970730 - 980210	COG

Period of Service Under Review:

Date of Enlistment:  980211		Date of Discharge:  000811

Length of Service (years, months, days):

	Active:    02  06  01
	Inactive:  None

Age at Entry:  18			Years Contracted:  5

Education Level:  12			AFQT:  74

Highest Rank:  LCpl			MOS:  7234

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0 (5)			Conduct:  3.6 (5)

Military Decorations:  None

Unit/Campaign/Service Awards:  LoA, MM, CoC, RSB

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. 6210.2.

Chronological Listing of Significant Service Events:

990107:	Counseled for deficiencies in performance and conduct.  [Display of poor physical condition displayed by failing a PFT on 981217.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990614:	Counseled for deficiencies in performance and conduct.  [Repeated violations of Article 86 by being late for PTP on more than one occasion.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990720:	NJP for violation of UCMJ, Article 86 (3 specs):
Specification 1: Unauthorized absence from 0530-0729, 990707.
Specification 2: Unauthorized absence from 0530-0729, 990709.
Specification 3: Unauthorized absence from 0530-0729, 990714.
Violation of UCMJ, Article 92 (3 specs):
Specification 1: Failed to obey an order given by SgtMaj V_ on 990614 to take corrective action to report to PTP on time.
Specification 2: Failed to obey an order given by Sgt H_ on 990709 to take corrective action to report to PTP on time.
Specification 3: Failed to obey an order given by 1st Lt W_ and SSgt S_ on 990713 to take corrective action to report to PTP on time.
Violation of UCMJ, Article 107:
Specification: Made a false official statement to SSgt S_ by stating that he did not make the phone calls that was posted on LCpl B_ phone bill.
Violation of UCMJ, Article 121:
Specification: Knowingly used LCpl B_ pin number without his permission.
Awarded forfeiture of $537.00 per month for 2 months, restriction and extra duties for 45 days, reduction to E-2.  Not appealed.

990729:	Counseled for deficiencies in performance and conduct.  [Your poor physical condition displayed by your failure to make progress on the Squadron Physical Training Platoon Program.  You have been on PTP since 981222 and have not made satisfactory progress.  You also failed to pass your Semi-Annual PFT on 990629.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990928:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 86:
	Specification: Unauthorized absence from 0530-0719, 990729.
	Charge II: violation of the UCMJ, Article 107 (2 specs):
	Specification 1: Make a false official statement, to wit: Was at Physical Training Platoon at 0530, 990929.
	Specification 2: Make a false official statement, to wit: That due to inclement weather, physical training had been held at the Devil Dog Gym.
	Finding: to Charge I and II and the specification 1 thereunder, guilty.  Charge II and specification 2 thereunder, not guilty.
	Sentence: Forfeiture of $639.00, restriction for 45 days, reduced to E-1.
	CA action 990928:  Sentence approved and ordered executed except for that portion of the punishment adjudging forfeiture of $639.00 which is suspended for 6 months.

000519:	Counseled for deficiencies in performance and conduct.  [Failure to report to rifle range on time resulting in being dropped from the range.]

000713:	Applicant notified of intended recommendation for discharge by reason of misconduct due to minor disciplinary infractions.  The least favorable characterization of service, which you may receive, is under other than honorable conditions.

Undated:	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.

000713:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.  The factual basis for this recommendation was your continued violations of the Uniform Code of Military Justice as evidenced by your summary court-martial, nonjudicial punishment and four adverse counseling entries on page 11 of your service record.  

000731:	SJA review determined the case sufficient in law and fact.

000731:	Commander, 2d Marine Aircraft Wing directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20000811 under other than honorable conditions for misconduct due to minor disciplinary infractions (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.  An under other than honorable conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by three retention warnings and nonjudicial punishment proceedings for violations of Articles 86, 92, 107 and 121 of the UCMJ.  The Applicant was convicted at court-martial of violations of Articles 86 and 107 of the UCMJ.  The Applicant was also counseled for failing to report to the rifle range, an event that was never adjudicated.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant contends that his discharge characterization should be changed because his last episode of misconduct, failing to report to the rifle range, was never adjudicated.  Per reference (A), a Marine may be separated when there is a documented series of at least three minor disciplinary infractions, during his current enlistment, of a nature which have been or would have been appropriately disciplined under Article 15, UCMJ, nonjudicial punishment.  The Board determined that the Applicant’s failure to report to the rifle range would have been appropriately disciplined under Article 15 of the UCMJ and, as such, consider the Applicant’s discharge proper and equitable.  Relief is not warranted.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code.  Reenlistment policy of the Marine Corps is promulgated by the Commandant, United States Marine Corps, Code MMEA, 3280 Russell Road, Quantico, VA 22134.  Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment.  A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of 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 31 Aug 2001. 

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 107, false official statement.

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