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

 ex-Pvt, USMC
Docket No. MD05-00605

Applicant’s Request

The application for discharge review was received on 20050218.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a personal appearance hearing before the Board in the Washington, D.C. Metropolitan 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) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050608.  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. 6210.6.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I made a serious mistake 2 years ago, and I want another chance to make it right. I’m trying to join the coast guard now.  I am 21 years old now, I have seriously grown up now.  I do believe I am deserving of a second chance.”

Documentation

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

None was submitted.

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		010612 - 010826	COG

Period of Service Under Review:

Date of Enlistment:  010827		Date of Discharge:  030402

Length of Service (years, months, days):

	Active:    01  07  06		Does not exclude lost time
	Inactive:  None

Age at Entry:  17			Years Contracted:  4

Education Level:  12			AFQT:  43

Highest Rank:  LCpl			MOS:  0161

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (4)			Conduct:  3.4 (4)

Military Decorations:  None

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

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. 6210.6.

Chronological Listing of Significant Service Events:

020603:	Applicant counseled on leaving base without a liberty buddy.

020708:	Applicant counseled on leaving base without a liberty buddy.

020807:	NJP for violation of UCMJ, Article 92 (3 specs):
Specification 1: Failure to obey a lawful order issued by MARCORBASESJAPANO 1600.1B dated 990218 on 2200, 020706, to wit: consuming alcohol under the age of 21 years old.
Specification 2: Failure to obey a lawful order issued by BNO 1050.1 dated 000818 on 1930, 020706, to wit: depart Camp Hansen without a liberty buddy.
Specification 3: Failure to obey a lawful order issued by BnO 110.1 dated 990315 on 0315, 020707 to wit: being in room of a Marine of the opposite sex after hours.
Awarded forfeiture of $304.00 per month for 1 month, correctional custody for 7 days.  Not appealed.

020807:	Applicant found fit for confinement.

020813:	Applicant released from confinement.

020815:	Counseled for deficiencies in performance and conduct.  [Failure to obey orders or regulations, to wit: underage consumption of alcohol on 020706.]  Necessary corrective actions explained, sources of assistance provided, disciplinary warning issued.  

020913:	Applicant to Alcohol Impact Course.

020919:	Applicant successfully completed Alcohol Impact Course.

021101:	NJP for violation of UCMJ, Article 92:
Specification: Failure to obey lawful order issued by MARCORBASESJAPANO 1050.4B on 2200, 021011, to wit: wrongfully departing Camp Hansen for the village of Kin without a liberty buddy.
Awarded forfeiture of $500.00 per month for 1 month, correctional custody for 15 days, reduction to E-2.  Forfeiture suspended for 6 months.  Not appealed.

021105:	Applicant found fit for confinement.

021119:	Counseled for deficiencies in performance and conduct.  [Failure to obey lawful order.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

030225:	Applicant released from confinement.

030312:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 92 (6 specs):
	Specification 1: Failure to obey lawful order on 021231 by leaving the limits of Camp Kinser without proper authority.
	Specification 2: Failure to obey lawful order on 030104 by wrongfully leaving the limits of Camp Kinser without property authority.
	Specification 3: Failure to obey lawful order on 030119 by wrongfully leaving the limits of Camp Kinser without property authority.
	Specification 4: Violate a lawful general order on 030119 by wrongfully going to Banyan Tree Club, an off-limits establishment.
	Specification 5: Violate a lawful general order on 030119 by wrongfully wearing a marijuana leaf necklace.
	Specification 6: Violate a lawful general order on 030123 by wrongfully going to Banyan Tree Club, an off-limits establishment.
	Charge II: violation of the UCMJ, Article 134 (2 specs):
	Specification 1: Unlawfully entry room #101, the assigned Bachelor Enlisted Quarters of PFC S_ on 021130.
	Specification 2: Unlawfully entry room #101, the assigned Bachelor Enlisted Quarters of Pvt J_ on 021208.
	Finding: to Charge I, specifications 1, 3, 4, 5 thereunder, guilty.  Charge II, specification 1 thereunder, guilty.  Charge I and specifications 2 and 6 and Charge II specification 2 thereunder, not guilty.
	Sentence: Forfeiture of $150.00, restriction for 60 days, reduced to E-1.
	CA action 030312:  Sentence approved and ordered executed except for that portion of the punishment adjudging restriction for 60 days.  The 60 days awarded is credited by time served due to pretrial confinement and pretrial restriction.

030313:	Substance Abuse Evaluation: Applicant revealed pattern of alcohol abuse which may indicate a substance abuse disorder.

030321:	Counseled for deficiencies in performance and conduct.  [Pattern of misconduct and commission of a serious offense.]  Necessary corrective actions explained, sources of assistance provided.

030324:	Applicant notified of intended recommendation for discharge by reason of misconduct due to a pattern of misconduct and misconduct due to the commission of a serious offense.  The least favorable characterization of service which Applicant may receive is under other than honorable conditions.

030324:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

030324:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to the commission of a serious offense.  The factual basis for this recommendation was due to a pattern of misconduct reflecting conduct prejudicial to good order and discipline and dishonorable failure to comply with orders.

030327:	SJA review determined the case sufficient in law and fact.

030328:	Applicant signed statement of understanding regarding VA treatment.

030328:	Commanding General, Marine Corps Base, Camp Smedley D. Butler directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and by reason of misconduct due to a pattern of misconduct.  Misconduct due to commission of a serious offense is determined to be the primary reason.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030402 under other than honorable conditions for misconduct due to the commission of a serious offense (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 four performance and conduct counselings, two nonjudicial punishment proceedings and one summary court-martial.  The Applicant’s conduct was adjudicated by NJP or summary court-martial for six violations of Article 92 of the UCMJ and one violation of Article 134 of the UCMJ.  The Applicant’s Article 92 violations are considered serious offenses.  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 Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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 Naval service.  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 denied.

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 01 September 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, failure to obey an order or regulation.

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