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

 ex-PVT, USMC
Docket No. MD05-00614

Applicant’s Request

The application for discharge review was received on 20050214.  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 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. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1. “Discharged after knowing I was gay and put my discharge as misconduct under OTH discharge to go faster.”

Documentation

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

None were submitted by Applicant

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		021206 - 030309	COG

Period of Service Under Review:

Date of Enlistment:  030310		Date of Discharge:  031119

Length of Service (years, months, days):

	Active:    00  08  10		[Does not exclude lost time]
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  12			AFQT:  45

Highest Rank:  PVT			MOS:  9971

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  2.6 (2)			Conduct:  2.5 (3)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, RSB

Days of Unauthorized Absence:  53

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:

030807:	NJP for violation of UCMJ, Article 86: Did absent himself without proper authority on or about 1800, 030720 and surrendered himself on or about 1800, 030804.
Awarded forfeiture of $248.00 pay per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

030807:	Counseled for deficiencies in performance and conduct.  [You did without proper authority, absent yourself from your appointed place of duty on or about 1800, 030720 and surrendered on or about 1800, 030804]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

031021:	NJP for violation of UCMJ, Article 86: Did absent himself without proper authority on or about 2100, 030916 and did remain absent until on or about 1530, 031020.
Awarded forfeiture of $575.00 pay per month for 2 months, restriction and extra duties for 45 days.  Not appealed.

031023:	Applicant notified of intended recommendation for discharge by reason of misconduct due to a pattern of misconduct and commission of a serious offense, with the least favorable characterization of service as under other than honorable conditions

031023:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

031023:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and by reason of misconduct due to commission of a serious offense.  Commanding Officer’s comments:  Private W__’s intolerable actions over the past several months have resulted in two nonjudicial punishments and one derogatory counseling entry, commission of a serious offense is Private W___’s unauthorized absence that was later adjudicated at nonjudicial punishment.  Private W___ went in an unauthorized status on 030916 until 031020 for 34 days.  

031023:	Applicant requested voluntary leave

031024:	Commanding General, Marine Corps Base, Camp Pendleton directed to voluntary leave.

031029:	SJA review determined the case sufficient in law and fact.

031031:	GCMCA Commanding General, Marine Corps Base, Camp Pendleton directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and by reason of misconduct due to commission of a serious offense.  Pattern of misconduct is designated as the primary reason.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20031119 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.  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 a retention warning and two nonjudicial punishment proceedings for violations of Article 86 of the UCMJ.  The Applicant spent 53 days in unauthorized absence, with one period 37 days in duration.  The Applicant’s 37-day unauthorized absence is considered the commission of a serious offense. 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 he was discharged after his homosexuality was discovered and that he was discharged “under OTH” in order to be discharged faster.  Reference (A) indicates that a Marine should be processed for separation for misconduct by reason of pattern of misconduct or misconduct by reason of a commission of a serious offense unless rehabilitation and retention are warranted and that separations based on misconduct take precedence over other potential reasons for separations.  Separations under these conditions normally result in a discharge with an under other than honorable conditions characterization.  The Applicant’s Commanding Officer recommend his discharge and the Applicant declined his right appear before an administrative board. The Board found no evidence in the record that the Applicant’s administrative processing was inequitable or improper.  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 P1900.16F), 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 86, unauthorized absence for more than 30 days.

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