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

ex-PVT, USMC
Docket No. MD05-00550

Applicant’s Request

The application for discharge review was received on 20050208.  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 20050519.  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

No issues were submitted by the Applicant.

Documentation

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

Applicant’s DD Form 214 (Member copies 1 and 4)

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		000828 - 000917	COG

Period of Service Under Review:

Date of Enlistment:  000918		Date of Discharge:  040430

Length of Service (years, months, days):

	Active:    03  07  13
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  42

Highest Rank:  LCpl			MOS:  5811

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  NMA*			Conduct:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, NDSM, RMB, PMB

Days of Unauthorized Absence:  None

*No Marks available for review.

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:

020730:	NJP for violation of UCMJ, Article 92: Having knowledge of a lawful order issued by MARCORBASESJAPANO 1600.1B dtd 990218, an order which it was his duty to obey, did, on or about 2400 and 2430, 020705, at Gate 1, Camp Hansen, fail to obey the same by consuming alcohol under the legal age of 21 years old.
Awarded forfeiture of $304.00 per month for 1 month (suspended for 6 months), restriction and extra duties for 4 days.  Not appealed.

020807:	Counseled for deficiencies in performance and conduct.  [Violation of Article 92 of the UCMJ, failure to obey orders or regulations, (underage consumption of alcohol).  On or about 2400 on 020705 SNM consumed alcohol near Gate 1 of Camp Hansen while under the legal age to do so.]  Necessary corrective actions explained, sources of assistance provided, disciplinary warning issued.

020807:	Counseled for deficiencies in performance and conduct.  [On or about 020803, knowingly and willingly fail to obey the same [Article 92, UCMJ] by leaving Camp Hansen without proper authorization; Violation of Article 107, UCMJ: False official statement, to wit: “I was at the PX on 020804”, or words to that effect, which statement was totally false, and was then said by LCpl H_ to be so false; Violation of Article 107, UCMJ: False official statement, to wit: On or about 020803, on board Camp Hansen, falsify an official document with the intent to deceive by knowingly and willfully forging the NCO’s signature on his restriction papers.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020807:	Suspended portion of Commanding Officer’s NJP of 020730 vacated due to
		continued misconduct.

020808:	NJP for violation of UCMJ, Article 92: Having knowledge of a lawful order issued by Capt J.R. P_, B Co CMDR, on 020730, an order which it was his duty to obey, did, while on restriction, at Camp Foster Exchange, on or about 020803, knowingly and willfully fail to obey the same by leaving Camp Hansen without proper authorization; violation of UCMJ, Article 107: Did at the B Co Office, on or about 020806, with intent to deceive, make an official statement, to wit: “ I was at the PX on 020804”, or words to that effect, which statement was totally false, and was then known by the said LCpl H_ to be so false; violation of UCMJ, Article 107: Did on or about 020803, falsify an official document with intent to deceive by knowingly and willfully forging the Duty NCO’s signature on his restriction papers.  Awarded reduction to E-2.  Not appealed.

021010:	Counseled for deficiencies in performance and conduct.  [Violation of Article 134 (Specification 113, wearing unauthorized insignia, decoration, badge, ribbon, device or lapel button).  In that you did on or about 0730, 020911, check into the Provost Marshal Officer, MCRD Parris Island, SC, wearing Lance Corporal chevrons after being reduced to PFC at non-judicial punishment while assigned to your previous command.  This action is also in direct violation of the Marine Corps Uniform Regulation: (MCO P1020.34F), Chapter 4, Section 1, sub paragraph, (a).]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
 
021106:	Counseled this date concerning the possible pattern of misconduct set by the Applicant as determined by an administrative screening of his service record book.  Necessary corrective actions explained, disciplinary and discharge warning issued.

030722:	Counseled for deficiencies in performance and conduct. [Concerning your assignment to the Marine Corps BCP.  Specifically, you failed to properly maintain your body composition standards as required by MCO P6100.12.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

030813:	Counseled for deficiencies in performance and conduct. [On 030719 you were involved in a domestic incident, which involved you wife.  The local authorities arrived on scene but declined to arrest either of you.  You were issued a Military Protective Order on 030712 by you Company Commander and were assigned to room in the Headquarters Battalion, Service Company barracks.  You were further directed to attend marriage counseling and anger management classes through the Family Advocate Program.  Your behavior is a clear demonstration of immaturity and poor judgment.  Your inappropriate conduct is blatantly contrary to the prejudice of good order and discipline in this command.]  Necessary corrective actions explained, disciplinary and discharge warning issued.

031208:	NJP for Violation of UCMJ, Article 86: On or about 0900, 030924, 031001, 031008, and 031015, SNM did, without authority fail to go to his appointed place of duty, to wit: Weekly Men’s Group Meeting, at the Family Advocacy Center, Bldg 17, located at MCRD PISC; Violation of UCMJ, Article 92: Did at Bldg 565 Military Police Office, MCRD, PISC, on or about 1100, 030917 failed to obey a lawful order given by SSgt B_ to complete a 1000 word research paper and give a 15 minute period of instruction on the Marine Corps Regulations and Grooming Standards as a mean to correct his deficiencies; Violation of UCMJ, Article 128: In that SNM, did, at 1359 Cardinal Lane, Laurel Bay Housing, on or about 2300, 031018, assault F_ E. H_ (wife) by grabbing and throwing her down on the deck at least twice as evidenced by Military Police Reports and a FAP Case Review Committee substantiation.
Awarded forfeiture of $200.00 pay per month for 2 months (1 month's forfeiture suspended for 6 months) extra duties for 14 days, reduction to
E-2.  Not appealed.

040127:	Suspended portion of Commanding Officer’s NJP of 031208 vacated due to
		continued misconduct.

040129:	NJP for Violation of UCMJ, Article 132: On or about 1630, 040104, SNM, did, wrongfully obtain a DOD decal by presenting a fictitious vehicle registration plate to the Provost Marshal’s Office with the intent to deceive; Violation of UCMJ, Article 92: On or about 1630, 040104, SNM did, fail to obey a lawful order issued by the Commanding General, to wit: DepO 5560.8a, an order which was his duty to obey, by failing to obtain proper state vehicle registration prior to applying for a DOD decal; Violation of UCMJ, Article 86: On or about 0900, 031222 and 0900, 040126, SNM did, without authority, fail to go at the prescribed time to his appointed place of duty, to wit: Men’s Group Meeting at Family Service Center, MCAS Beaufort, SC.
Awarded reduction to E-1.  Not appealed.
  
040310:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

040414:	Applicant advised of 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.

040420:	Commanding Officer, H&S Battalion, MCRD, Parris Island, SC recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  The factual basis for this recommendation was the Applicant’s multiple non-judicial punishments and numerous adverse page 11 entries within his current enlistment. 

040422:	SJA review determined the case sufficient in law and fact [Extracted from CG, MCRD/ERR, PISC letter of 040422].

040422:	GCMCA, Commanding General, Marine Corps Recruit Depot/Eastern Recruiting Region, Parris Island, SC 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 20040430 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).

The Applicant introduced no decisional issues for consideration by the NDRB.  As such, the Board reviewed the Applicant's military records to determine if his discharge from service was proper and equitable and, thus, upgrade to his characterization of service warranted.

The Board found that the Applicant's other than honorable discharge was proper and equitable.  The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted.  There is no evidence of impropriety, inequity or procedural irregularities in the Applicant's discharge.  The Applicant's misconduct is clearly documented.  He acknowledged and waived his rights to administrative review.  The Applicant was afforded the appropriate due process during the processing of his case.  The NDRB found that the aggravating factors in this case outweighed any mitigating and extenuating factors contained in his record.  Aggravating facts noted by the Board included six formal counseling (Page 11) entries for deficiencies in performance and conduct and four nonjudicial punishment (NJP) proceedings for violations of the following Articles of the UCMJ:  86 Unathorized absence (2 total specifications), 92 Disobeying a lawful order (4 total specifications), 107 False official statement (2 total specifications), 128 Assault, and 132 Fraud.  An upgrade of the Applicant's discharge to an honorable characterization is not warranted.  Relief on this basis is denied.

The following is provided for the edification of the Applicant.  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 Marine Corps.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided any documentation for the Board to consider.  Relief on this basis is not possible at this time.

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.  The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time.  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 132 Fraud against the United States.

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