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

ex-PFC, USMC
Docket No. MD05-00690

Applicant’s Request

The application for discharge review was received on 20050308.  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 20050620.  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.  “ I J_ C. B_ (Applicant) request to change my discharge code.  My reason for this contains the following information that lead to my discharge.  I feel that I was discharged unfairly.  And Wish I could be accepted back into the Marines or another branch of service.

I was accepted in the Marines July 7, 2000.  In Boot camp I was a good Marine, also ranking high in Physical fitness, and when I was stationed I also was high in pft for my company.  During my time in the Military I made little mistakes that lead to me being Administrative separated.  When I had just started doing what I was supposed to hopefully starting picking up rank and everything, also was told I was going to be able to finish my enlistment I was told all of a sudden I was going to be Administrative separated.  I wasn’t prepared had to quickly find somewhere to go and was not financially ready to be separated losing all benefits, and my pride, in which I always took pride in.  Right now I’m in the civilian world struggling, cannot find a decent job to support my two kids and dealing with being way up here in which I had no other place to go because I had no way of staying in the state in which my kids stay in.  I am also stilled owed back pay because when I got out I was told that my back pay was going to be deposited into my account and it never happened.  I believe I was treated unfairly and the Marines rushed me out improperly.   Honestly I see myself only in the United Stated Marine Corps and no other but if that is not possible I would like my discharge code updated to go into another Branch of service, in which I was told that the code I had would allow me to enlist into another service anyway, in which I found out later on that that was not true.  
So in conclusion I was always a good leader and was given leadership tasks, always high in physical fitness, and believe that my code should be changed so that I can be a good asset to the branch of service I was in or another branch of service.

Semper Fidelis
J- C_ B_ (Applicant)”

Documentation

Only the service and medical records were reviewed.  The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		991108 - 000705	COG

Period of Service Under Review:

Date of Enlistment:  000706		Date of Discharge:  030908

Length of Service (years, months, days):

	Active:    03  02  03
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  32

Highest Rank:  LCpl			MOS:  3051

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0 (6)			Conduct:  3.95 (6)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, RMB

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. 6210.3.

Chronological Listing of Significant Service Events:

020124:	NJP for violation of UCMJ, Article 92:  On or about 1000, 020116 fail to obey a regulation, to wit: barracks order, by wrongfully having females in his room.
Awarded restriction and extra duties for 14 days.  Not appealed.

020204:	NJP for violation of UCMJ, Article 92 (4 Specs):
Specification 1:  On or about 1303, 020127, failed to obey a lawful order, to wit: Company restriction policy by checking in late.  
Specification 2:  On or about 1450, 020127, failed to obey a lawful order, to wit:  MCO P5300.12aM, by drinking under the legal age of 21.  
Specification 3:  On or about 020127, failed to obey a lawful order, to wit:  Company restriction policy, by wearing civilian attire.
Specification 4:  On or about 020127, having knowledge of a lawful order issued by Sgt G_ to shave, an order which it was his duty to obey, did at FC555, failed to obey the same by wrongfully not shaving when he was told to shave the first time.
Awarded forfeiture of $692.00 pay per month for 1 month (suspended for 6 months), reduction to E-2.  Not appealed.

020621:	Counseled for deficiencies in performance and conduct [poor judgment, specifically, been driving on a suspended Virginia State Driver’s license and have been driving on a base revocation].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

021009:	NJP for violation of UCMJ, Article 92 (2 Specs):
Specification 1:  On or about 1630 on 2 May 202, on board Camp Lejeune, NC, intentionally drove his vehicle on base willingly and knowingly that his license was revoked.
Specification 2:  On or about 1630 on 23 August 2002, on board Camp Lejeune, NC, intentionally drove his vehicle on a suspended license while privileges were revoked on base.
Awarded forfeiture of $619.00 pay per month for 2 months, restriction and extra duties for 45 days, and reduction to E-2.  Not appealed.

030307:	Counseled for deficiencies in performance and conduct [continual violations of regulations by disregarding orders].  Acknowledged understanding that he was being processed for adverse administrative separation for a pattern of misconduct.

030425:	NJP for violation of UCMJ, Article 92 (2 Specs):
Specification 1:  Failure to obey an order or regulation, to wit: did on or about 0200 on 20030220, violate FSSG Order P11101.4B in reference to BNO 1700.4A, by having a female in his room in barracks FC 525.
Specification 2:  Failure to obey an order or regulation, to wit:  did on or about 0200 on 20030220, violate FSSG Order P11101.4B in reference to BNO 1700.4A, by bringing a minor into barracks FC525.
Awarded forfeiture of $301.00 pay for seven (7) days, restriction and extra duties for 14 days.  Not appealed.

030528:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by a repeated inability to conform to the military, specifically Company level Non-Judicial punishment (NJP) for violation of Article 92 (disobeying a lawful order) imposed on 25 January 2002; Battalion level NJP imposed on 07 February 2002 for violating Article(s) 92 times four; Battalion level NJP imposed on 9 October 2002 for violation of Article 92 times two and a Company level NJP imposed on 25 April 2003 for violating Article 92 times two again.  

030528:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to include statements in rebuttal to proposed separation.

030718:	Officer in Charge, 2d Supply Battalion Detachment (Rear) recommended to Commanding General, 2d Marine Expeditionary Force, via Commanding Officer, 2d Force Service Support Group (Rear) that the Applicant be discharged under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  The factual basis for this recommendation was two derogatory page 11 entries, two Company level Non Judicial Punishments and two Battalion level Non Judicial Punishments.  Officer in Charge’s comments (verbatim):  Private First Class B_ (Applicant) requires constant supervision and he consumes considerable command attention and resources.  He has been repeatedly counseled and punished and has yet to show any progress.  His unwillingness to live within Marine Corps rules and regulations, and his actions have consistently been designed to prompt his separation from the Marine Corps and disrupt the morale and discipline of the unit.  These traits make him an unproductive member of this command and the military.  

030728:	SJA review determined the case sufficient in law and fact.

030729:	GCMCA, Commander, 2d Force Service Support Group advised the Commandant of the Marine Corps of 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 20030908 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.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.  Specifically, the Applicant states that he was “treated unfairly and the Marines rushed me out improperly”.  The record contains no evidence of any wrongdoing by the government or anyone associated with the 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.

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 92 (9 specs of failure to obey an order, regulation) of the UCMJ.  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.

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.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  

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 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