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

 ex-PVT, USMC
Docket No. MD04-01129

Applicant’s Request

The application for discharge review was received on 20040701.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record 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 20041222.  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. “My discharge was based on one incident, from there it steamrolled into a discharge of other than honorable status please review my records without any documents relating to my mental condition which I believe led to the decision to discharge me with other than honorable status”

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Active:    None
	Inactive: USMCR(J)		940718 - 940911	COG

Period of Service Under Review:

Date of Enlistment:  940912		Date of Discharge:  970221

Length of Service (years, months, days):

	Active:    02  05  10
	Inactive:  None

Age at Entry:  21			Years Contracted:  4 

Education Level:  12			AFQT:  70

Highest Rank:  PFC			MOS:  6015

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.9 (7)			Conduct:  3.4 (7)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, COC, MM (2), 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:

950411:	NJP for violation of UCMJ, Article 86: Did, at MATSS-901, MATSG-90, on or about 0600, 950401, fail to go to his appointed place of duty, to wit: field day room inspection.
Awarded forfeiture of $200.00 pay per month for 1 month, restriction for 15 days (suspended for 3 months), reduction to E-1.  Not appealed.

960306:	Counseled for deficiencies in performance and conduct.  [Violation of Article 86 of the UCMJ.  Failure to be at appointed place of duty on 960225.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960709:	Not recommended for promotion to E-3 for the month of August due to conduct not becoming of the next grade.

960719:	Counseled for deficiencies in performance and conduct.  [Lack of maturity and poor judgement, Specifically, on 960515 I was returned from the squadron CAX deployment due to my poor judgement, making me incompatible with the mission I was assigned, guard duty.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960827:	Not recommended for promotion to E-3 for the month of September due to conduct not becoming of the next grade.

960910:	NJP for violation of UCMJ, Article 86: Unauthorized absence on 960828, knowingly failed to go at the time prescribed to appointed place of duty; violation of UCMJ, Article 134: Wrongfully communicated to LCpl T_ a threat to injure: “I am going to attack you in your sleep with a baseball bat and kill you.”
Awarded restriction and extra duties for 45 days, reduction to E-1.  Not appealed.

961001:	Counseled for deficiencies in performance and conduct.  [Alcohol related incident on the night of 960930.  SNM was arrested for drunk and disorderly conduct in the town of Welton at 0400.  SNM was on leave traveling to a court date in Nebraska].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

961003:	Commanding Officer recommended discharge under honorable conditions (general) by reason of misconduct due to a pattern of misconduct.  The factual basis for this recommendation was your continued violations of the UCMJ as detailed in the informal inquiry. 

961009:	Not recommended for promotion to E-3 for the month of October due to conduct not becoming of the next grade.

961209:	Applicant notified of intended recommendation for discharge under honorable conditions (general) by reason of misconduct due to a pattern of misconduct.  Applicant informed the lowest characterization possible was under other than honorable conditions.

961209:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

970114:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to a pattern of misconduct, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

970220:	SJA review determined the case sufficient in law and fact.

970220:	GCMCA [Commanding General, 3d Marine Aircraft Wing] 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 19970221 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.  A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a Marine.  The Applicant’s service was marred by award of nonjudicial punishment (NJP) on two occasions for violation of UCMJ, Articles 86 and 134, and adverse counseling entries on other occasions.  While he may feel that his mental condition at the time was a factor that contributed to his actions, the record clearly reflects his disregard for the requirements of military discipline and demonstrated that he was unfit for further service.  Discharge for misconduct takes precedence over administrative separation for other potential reasons.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question.  No such inequity or impropriety is evident during the Applicant’s enlistment.  Additionally, 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 the service.  Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his 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 86, unauthorized absence; and Article 134, communicating a threat.

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