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

 ex-PFC, USMC
Docket No. MD04-01442

Applicant’s Request

The application for discharge review was received on 20040917.  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 20041229.  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/INVOL DIS (BOARD WAIVED) (MISCONDUCT) MINOR DISP INF, authority: MARCORSEPMAN Par. 6210.2.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I know that the discharge I received was unjust because the way that my 1st Sergeant came about punishing me was unfair.  Before I got out the military I was getting out on a medical dischargewhich was in process.  During this process my 1st Sgt told me that if you get in trouble one more time your medical discharge would be changed to other than honorable and I would lose my GI Bill which did happen when I was discharged.  Why I said my discharge was unjust is as follow.  During these last days while in the service, me and one of my fellow Marine.  He and I usually goes home on holidays, 48 or 96.  On this last time I received punishment which lead to this type discharge.  On our way back to base me and my fellow Marine, pumped gas at a gas station.  Neither one of us had cash on us, and they didn’t accept checks.  So we had to go back to base and get some cash to go back and pay the clerk and get our ID’s back.  When we got back to base, our unit was in the field.  So we got permission from the rear duty NCO which we did to go back to pay this clerk.  When we returned back to base my Sgt told me that my 1st Sgt said we didn’t have permission to leave base.  So following this UCMJ charge, I was denied getting out on medical reasons and received an (OTH) So I was discharged.  I found out that my unit was disbanded after getting out.  I feel that my discharge was unjust and I’m requesting it to be upgraded as requested”

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)		920526 - 920909	COG

Period of Service Under Review:

Date of Enlistment:  920910		Date of Discharge:  950518

Length of Service (years, months, days):

	Active:    02  08  09
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  42

Highest Rank:  PFC			MOS:  0311

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.5 (9)			Conduct:  3.2 (9)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, AFEM, SSDR, UNM

Days of Unauthorized Absence:  1

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/INVOL DIS (BOARD WAIVED) (MISCONDUCT) MINOR DISP INF, authority:  MARCORSEPMAN Par. 6210.2.

Chronological Listing of Significant Service Events:

930315:	NJP for violation of UCMJ, Article 91: Disrespectful to 1st Sgt Z_; violation of UCMJ, Article 121: Stole $420.00 from PFC M_’s secretary on 930204.
Awarded forfeiture of $406.00 per month for 2 months, restriction and extra duties for 45 days, reduction to Pvt (forfeiture of $406.00 for one month and 14 days restriction and extra duty suspended for 6 months).  Not appealed.

930324:	Counseled for deficiencies in performance and conduct.  [Frequent involvement with military authorities, academic failure, disenrollment from MOS training track 2542, and having access to classified materials revoked.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

930401:	NJP for violation of UCMJ, Article 86: UA from restriction muster.
	Award:  Forfeiture of $407.00, restriction for 60 days.  Not appealed.

941006:	Counseled for deficiencies in performance and conduct.  [Financial irresponsibility.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

941205:	Division Psychiatrist diagnosed the Applicant with a severe antisocial personality disorder.  Recommended expeditious administrative separation.

941227:	Counseled for deficiencies in performance and conduct.  [Antisocial personality disorder and frequent involvement with military authorities.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

941227:	NJP for violation of UCMJ, Article 86: UA from 0730, 941214 to 0730, 941215.
	Award:  Forfeiture of $217.00, restriction and extra duty for 14 days.  Not appealed.

950227:	NJP for violation of UCMJ, Article 86: UA from battalion formation.
	Award:  Forfeiture of $223.00, restriction and extra duty for 14 days (forfeiture of $123 suspended for 6 months).  Not appealed.

950322:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions and by reason of convenience of the government due to a personality disorder as evidenced by evaluation by the Division Psychiatrist and NJPs in the service record.

950322:	Applicant advised of rights and having consulted 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 and to submit a statement.

950322:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions and by reason of convenience of the government due to a personality disorder.  

950430:	SJA review determined the case sufficient in law and fact.

950510:	GCMCA [CG, 2d MARDIV] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.

950518:	NJP for violation of UCMJ, Article 107: False official statement to PMO, stating his stereo was stolen; violation of UCMJ, Article 121 (2 specs): Wrongfully misappropriate a stereo valued at $350.00 and an amplifier valued at $100.00.
	Award:  Forfeiture of $427.00 per month for 2 months, restriction and extra duty for 45 days, reduction to Pvt.  No indication of appeal in the record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19950518 under other than honorable conditions for misconduct due to minor disciplinary infractions (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.  Administrative separation for misconduct takes precedence over separation for other pending reasons.  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 five occasions for disrespect to a First Sergeant, unauthorized absences, false official statements, and stealing.  The Applicant’s average conduct markings also fall below the standard required for honorable service.  While he may feel that unfair treatment by his First Sergeant 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.  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 P1900.16D), effective 27 Jun 89 until 17 Aug 95. 

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; Article 91, disrespect to a SNCO, Article 107, false official statements; and Article 121, larceny.

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