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

 ex-Pvt, USMC
Docket No. MD05-00817

Applicant’s Request

The application for discharge review was received on 20050406.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  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 20050811.  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:

“To be seen as the honorable person I am.  Also to serve my country in time of need.”

Applicant’s Remarks: 

“I was a really good Marine as far as being a solider goes Sir or Mamm.

I was a lot younger I made mistakes and I realize it.

I would like my upgrade because it will Help me in the long run, and I would like to serve my country in time of need”

Extracted from DD Form 149, dated February 3, 2005:

“My O.T.H. discharge with a re-enlistment code of 4 be upgraded to honorable conditions, or atleast a re-enlistment code of 2or3 if at all possible Sir or Mamm.

I was young, and immature.  I was also not aware of the permenent consequences of my actions.  I was a good Marine as far as my job and mission were concerned, I just made some poor decisions as far as my conduct was concerned.”

Documentation

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

Applicant’s DD Form 149

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		980824 - 980908	COG

Period of Service Under Review:

Date of Enlistment:  980909		Date of Discharge:  000201

Length of Service (years, months, days):

	Active:    01  04  22
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  34

Highest Rank:  PFC			MOS:  3531

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.9 (4)			Conduct:  3.5 (4)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Marksman Badge

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:

980824:	Pre-service waiver granted.

990607:	NJP for violation of UCMJ, Article 92:
Specification: Failure to obey order or regulation.
Awarded forfeiture of $251.00 per month for 1 month, restriction and extra duties for 14 days.  Forfeiture suspended for 6 months. Not appealed.

990929:	Counseled for deficiencies in performance and conduct.  [Frequent involvement with authorities.  Since you have joined the Corps in Sept of 1998.  You have been on (1) company office hours and are going to another one for assaulting a fellow Marine.  You did this because you were upset at the fellow Marine that did not bring you your beer in a timely manner.  This is unsat and will not be tolerated in the Corps.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

991004:	NJP for violation of UCMJ, Article 128:
Specification: Assault.
Awarded forfeiture of $251.00 per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

991010:	Counseled for deficiencies in performance and conduct.  [Losing control of yourself, being disrespectful towards NCO’s and not following orders.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

991014:	Applicant informed eligible but not recommended for promotion to PFC/LCpl for the month of November because of recent NJP.

991103:	NJP for violation of UCMJ, Article 91:
Specification: Insubordinate conduct toward a noncommissioned officer.
Awarded reduction to E-1, forfeiture of $479.00 per month for 2 months, restriction and extra duties for 45 days.  Forfeiture suspended for six months.  Not appealed.

991130:	Award suspended at NJP on 991103 vacated due to further misconduct.

991203:	NJP for violation of UCMJ, Article 86:
Specification: Unauthorized absence at 1500 on 9911120 to 1930 on 991120.
Awarded forfeiture of $223.00 per month for 1 month, restriction and extra duties for 14 days.  Restriction and extra duty suspended for 6 months.  Not appealed.

991216:	Counseled for deficiencies in performance and conduct.  [Assaulting a corpsman with a basketball.  While playing basketball, I lost control, became disrespectful, and threw a basketball in the face of a Corpsman.  This is unsportsmanship conduct, this is unsat for a Marine to do, and this is blatant assault.  You have been displaying a childish behavior and this type of conduct will not be tolerated in the Marine Corps.]  Necessary corrective actions explained.
000113:	Applicant notified of intended recommendation for discharge by reason of misconduct due to a pattern of misconduct, under other than honorable conditions.  The factual basis for this recommendation was your documented pattern of misconduct

000113:	Applicant advised of rights and having elected not to consult with qualified counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

000114:	Commanding Officer, Headquarters Battalion, 1st Marine Division, Camp Pendleton, CA, recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  

000127:	SJA review determined the case sufficient in law and fact.

000128:	Commander, 1st Marine Division (Rein) 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 20000201 under other than honorable conditions for misconduct due to a pattern of misconduct (A and B).  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 (C and D).

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 two retention warnings and four nonjudicial punishment proceedings for violations of Articles 86, 91, 92 and 128 of the UCMJ.  The Applicant’s suspended award from his 19991103 NJP was vacated on 19991130 due to his 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 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 his problems in the Marine Corps can be attributed to his being “young and immature.”  While he may feel that his immaturity was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

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 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 31 Jan 97 until 31 Aug 01. 

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 128, assault.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  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