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

 ex-Pvt, USMC
Docket No. MD05-00612

Applicant’s Request

The application for discharge review was received on 20050216.  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 20050615.  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:

ISSUE 1:  “I was asked by CWO2 H_ and the Sergeant Major if I wanted to be discharged.  Sgt A_ was writing me up and getting me reduced in rank!  When asked I said Yes I will.”

ISSUE 2:  “I agreed to discharge.  When talking to CWO2 H_ he had also told me that in 6 months It would turn to Honorable have been trying to change for 5 years.”

Documentation

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

Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)			961001 - 961113	COG

Period of Service Under Review:

Date of Enlistment:  961114		Date of Discharge:  991210

Length of Service (years, months, days):

	Active:    03  00  27
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  43

Highest Rank:  LCpl			MOS:  6046

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (11)		Conduct:  3.7 (11)

Military Decorations:  None

Unit/Campaign/Service Awards:  MUC (2), LoA

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:

970930:	NJP for violation of UCMJ, Article 92:  Failure to obey regulations.  On or about 13 Sep 97, consumed alcohol while under the legal age of 21, and in possession of 7 inch knife in violation of barracks regulations.
Violation of UCMJ, Article 134:  Used racial slur toward another Marine.
Award:  Reduction to E-1 (suspended for 6 months), forfeiture of $450.00 pay per month for 2months, restriction and extra duties for 45 days.  Not appealed.

971001:	Counseled for deficiencies in performance and conduct [Violations of Article 92 and 134 of the UCMJ, in that, on or about 13 September, at the MALSEK barracks, used a racial slur, was in possession of a 7” knife and was drinking underage].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

981022:	NJP for violation of UCMJ, Article 92:  Fail to obey Regulation SqdO 1700.1E, by consuming alcoholic beverages under the legal age of 21 years on 981020 at HMH-463.
Award:  Reduction to E-2 (suspended for 6 months), forfeiture of $400.00 pay per month for 1 month (forfeiture of $300.00 pay per mo for 1 month suspended for 6 months), restriction for 7 days and extra duties for 30 days.  Not appealed.

981104:	NJP imposed and suspended on 981022 for a period of 6 moths is vacated and the punishment is ordered executed.

981104:	NJP for violation of UCMJ, Article 91:  Willfully disobeyed an order to clean his living space.
Violation of UCMJ, Article 91:  Disrespectful to Sgt Z_ by saying to him “F--- You.”
Violation of UCMJ, Article 92: Violated conditions of restriction by wearing civilian attire.
Award:  Reduction to E-1.  Not appealed.

981109:	Report by the Director SACC MCB Hawaii, provided the following recommendation:  Return to duty, no further action required.  Member should abstain from the use of alcohol until age 21.  Any future substance related incidents should be referred to SACC for reassessment.

991026:	NJP for violation of UCMJ, Article 91:  Insubordinate to Cpl G_ by saying to him “I am going to kick you’re a--.”
Violation of UCMJ Article 92:  Violated CG order by operating his motorcycle on base.
Violation of UCMJ Article 108:  Willfully damaged doors in government quarters.
Violation of UCMJ Article 109:  Willfully damaged Cpl G_’s POV.
Violation of UCMJ Article 134:  Communicated threat to Cpl and Mrs. G_.
	Award:  Reduction to E-1, forfeiture of $479 pay per month for 2 months, restriction and extra duty for 45 days (Forfeiture of $479 pay per mo for 1 month and 45 days restriction suspended for 6 months).  Not appealed.

991115:	Counseled for deficiencies in performance and conduct [Insubordinate conduct, damage to government and nongovernment property, willful disobedience of lawful orders and communication of threats is unacceptable].  Acknowledged being recommended for administrative separation from the Marine Corps under Other Than Honorable conditions by reason of a Pattern of Misconduct.

991117:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions as evidenced by numerous violations of the UCMJ, to include underage drinking (two offenses), failure to obey order or regulation by possessing a 7 inch knife in the barracks, disorderly conduct by use of racial slurs, disobeyed a lawful order, disrespect, disobeyed a lawful written order (two offenses), insubordinate conduct, damaged government property, damaged personal property, and communicated a threat, as evidenced by two page 11 counseling entries and four nonjudicial punishments. 

991117:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

991118:	VA Statement of Understanding.  SACC indicated member does not rate VA Treatment in conjunction with discharge because he was  found not to be alcohol dependent.  Applicant was provided with contact information for VA hospitals/facilities should his diagnosis change.

991118:	Commanding Officer, Marine Heavy Helicopter Squadron 363, recommended discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.  The factual basis for this recommendation was numerous violations of the UCMJ, to include underage drinking (two offenses), failure to obey order or regulation by possessing a 7 inch knife in the barracks, disorderly conduct by use of racial slurs, disobeyed a lawful order, disrespect, disobeyed a lawful written order (two offenses), insubordinate conduct, damaged government property, damaged personal property, and communicated a threat, as evidenced by two page 11 counseling entries and four nonjudicial punishments. 

991126:	Commanding Officer, 1st Marine Aircraft Wing Aviation Support Element Kaneohe, recommended to the CG, Marine Corps Base Hawaii, that Applicant be discharge under other than honorable conditions discharge by reason of misconduct due to minor disciplinary infractions.  Commanding Officer further stated:   “I personally intervened a year ago to deny an Administrative Discharge request on Private S_ (Applicant) submitted by the Commanding Officer of HMH-463.  After interviewing Private S_ I thought he could still contribute to our Corp and he was subsequently transferred to HMH-363 in order to get a “new” start and to complete his enlistment.  I was wrong.  Private S_ (Applicant) let me down.  Based on his record, I recommend that Private S_ (Applicant) be separated from the Marine Corps with an under other than honorable conditions discharge by reason of misconduct due to minor disciplinary infractions.”

991201:	SJA review determined the case sufficient in law and fact.

991203:	GCMCA, CG, Marine Corps Base Hawaii, advised the Commandant of the Marine Corps that the Applicant's discharge was directed 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 19991210 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.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.  The Applicant was properly notified, advised of his rights, and waived all rights.  The SJA determined that the case for the Applicant’s administrative discharge was sufficient in law and fact.  The record contains no evidence of any wrongdoing by the government in the administrative discharge process.  The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary.  As such, this Board presumed that Applicant’s discharge was regular in all respects.  Relief denied.    

Issue 2.  The Applicant states that he was told that after six months he could have his discharge upgraded.  There is no law or regulation that authorizes a discharge to be automatically upgraded after six months.  A former service member has 15 years, from the date of discharge, to petition the Board for consideration of an upgrade.  The Board does not automatically upgrade a discharge after six months.  Relief denied.

When the service of a member of the U.S. Marine Corps has been honest and faithful, it is appropriate to characterize that service as honorable.  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 2 retention warnings and 4 nonjudicial punishment proceedings for violations of Article 91 (1 spec of insubordinate conduct towards an NCO, 1 spec of willfully disobeying, 1 spec of contempt, disrespect towards NCO), Article 92 (5 specs of failure to obey order, regulation), Article 108 (willfully damage military property), Article 109 (willfully damage property other than military property of the U.S.), and Article 134 (1 spec of communicating a threat and 1 spec of disorderly conduct by use of racial slurs) of the UCMJ.  The suspended forfeiture of pay awarded at his second NJP was vacated for continued misconduct.  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 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 P1900.16E), 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 92, failure to obey order, 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