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

 ex-PFC, USMC
Docket No. MD05-00852

Applicant’s Request

The application for discharge review was received on 20050419.  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 20050727.  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:

“My discharge was inequitable because it was minor actions by myself.  My (RE) code of a 4 is too harsh for what occurred while in the Marines.  I believe an upgrade of my RE code is deemed necessary to my career.  I am still trying for a military career.  The mistakes while in the Marines I have used as a lesson to how “not to live my life” I was not aware of the harshness of my discharge at the time of discharge.  As of recently I have needed a better RE code so I could still support my country.  I believe an upgrade of RE code and an honorable discharge is what I deserve.  

I have got myself back into college.  Also visit a church every Sunday.  I have been out of trouble since I left the Marines.  I am or will be applying for commission in the National Guard when I complete the necessary credit hours.  I am still in good health and plan on staying that way.  I still have no tickets since I left the Marines.”

Documentation

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

None were submitted by the Applicant

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)			970418 - 970519	COG

Period of Service Under Review:

Date of Enlistment:  970520		Date of Discharge:  991216

Length of Service (years, months, days):

	Active:    02  06  27
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  12			AFQT:  66

Highest Rank:  LCpl			MOS:  0352

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0 (9)			Conduct:  3.7 (9)

Military Decorations:  None

Unit/Campaign/Service Awards:  Meritorious Mast, Sea Service Deployment Ribbon, Rifle Expert Badge (2d award), Pistol Sharpshooter 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. 6210.2.

Chronological Listing of Significant Service Events:

980128:	NJP for violation of UCMJ, Article 91, 92: Did willfully disobey an NCO, and left base without liberty partner, failed to sign out at WpnsCo, 1stBn, 3dMar.
Awarded forfeiture of $235.00 pay per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

980129:	Counseled for deficiencies in performance and conduct.  [Misconduct as evidenced by your recent Company NJP] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980615:	NJP for violation of UCMJ, Article 92: SNM violated Liberty Risk by not signing out with DCNO and by leaving Camp Hansen on 980509.
Awarded forfeiture of $519.00 pay per month for 2 months, restriction for 60 days.  Not appealed.

980615:	Counseled for deficiencies in performance and conduct.  [Misconduct as evidenced by your recent Company NJP] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990819:	NJP for violation of UCMJ, Article 86 (2 specs):
Specification 1: SNM was UA for a 0630 platoon formation on or about 990616, Specification 2: SNM was 40 minutes UA for the 2100 liberty bus from Kona to PTA on or about 990704; violation of UCMJ, Article 134: Self injury without intent to avoid service, by punching a passageway hatch. 
Awarded forfeiture of $537.00 pay per month for 2 months, restriction and extra duties for 45 days, reduction to E-2.  Not appealed.

990921:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.

990922:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

990923:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.  The factual basis for this recommendation was your numerous violations of the UCMJ, to include unauthorized absence (two offenses), disobeying a noncommissioned officer, disobeying a lawful written order (two offenses), and self injury without the intent to avoid duty.  

991005:	Commanding General, Marine Corps Base Hawaii, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.

991014:	SJA review determined the case sufficient in law and fact.

991130:	Commanding General, Marine Corps Base Hawaii granted the request for the modification of orders by the Applicant’s Commanding Officer to read NLT 3 December 1999.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19991216 under other than honorable conditions for misconduct due to minor disciplinary infractions (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).

The Applicant contends his discharge was inequitable because it was based on “minor actions by myself.”  Reference (A) indicates a Marine may be separated when there is a documented series of at least three minor disciplinary infractions, during the current enlistment, of a nature which have been or would have been appropriately disciplined under Article 15, UCMJ, nonjudicial punishment.  The Applicant’s service was marred by two retention warnings and three nonjudicial punishment proceedings for violations of Articles 86, 91 and 92 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 enlistment contract.  In fairness to those members of the Marine Corps, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due.  An upgrade of his characterization of service is in appropriate.  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.

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.  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 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 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