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

 ex-Pvt, USMC
Docket No. MD00-00015

Applicant’s Request

The application for discharge review, received 990930, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested 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 000614.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  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 – Pattern of misconduct (admin discharge board required but waived), authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  I was discharged for disobeying a direct order… a LT COL requested I remove my earring while on R+R out on the town with others that didn't have to comply (or weren't requested to) that also had in their ear rings.  We were wearing our "civvies" but I see now that regardless we were still representing the USMC & should have not worn the earrings.  A silly mistake, a good lesson.      

Documentation

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

Copies of Certificate of Military Service (3)
Letter from Applicant (2)

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		841004 - 841110	COG

Period of Service Under Review:

Date of Enlistment:  841211		Date of Discharge:  860624

Length of Service (years, months, days):

	Active:  01  06  13
	Inactive:  00  02  07

Age at Entry:  18			Years Contracted:  4

Education Level:  11			AFQT:  58

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.6 (4)		Conduct:  3.2 (4)

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR 

Days of Unauthorized Absence:  None 

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Pattern of misconduct (admin discharge board required but waived), authority:  MARCORSEPMAN Par. 6210.3.

Chronological Listing of Significant Service Events:

851206:	NJP for violation of UCMJ, Article 134: Wrongfully and willfully impersonate a military police of the Marine Corps on or about 851128.
	Award:  Forfeiture of $250.00 per month for 2 months ($150.00 pay per month suspended for 2 months), restriction and extra duty for 45 days, reduction to E-1 (suspended for 3 months).  Not appealed.

860114:	That portion of the punishment imposed and suspended on 851206 is hereby ordered vacated.

860130:	Summary Court Martial: Charge I: violation of UCMJ, Article 86: UA from his appointed place of duty, to wit: Morning Formation at Barracks 483, Charge II: violation of UCMJ Article 92: (5 Specifications), Spec 1: Failed to obey a lawful order given by Sgt G.S.S_____, Spec 2: Failed to obey a lawful order given by Sgt B.K. S_____, Spec 3: Failed to obey a lawful order given by Sgt F. V_____, Spec 4: Violate a lawful general order, to wit: paragraph 1104(7) ©, Marine Corps Order P1020.34D dtd 830727 by wrongfully wearing an earring, Spec 5: Disobeyed a lawful order given by Sgt G.S.S____, by failing to take the earring out of his ear. Charge III, violation of UCMJ, Article 134: Did on or about 851214, having been placed on duly imposed restriction, without authority, break said restrictions.
	Findings to Charge I and specification thereunder, guilty, to Charge II and specifications 2,3 and 4 thereunder guilty, to Charge III and specification thereunder, guilty.
	Sentence to Confinement with suspension from duty for 21 days, forfeiture of $319.00 per month for 1 month.
	CA (860207) Approved and ordered executed.

860305:	NJP for violation of UCMJ, Article 86: Failed to go to appointed place of duty, to wit; H&Bn S-4, Bld 429 Camp Butler, Camp Police; violation of UCMJ Article 92: Violate a lawful general regulation, to wit: (Marine Corps Grooming Regulations) by failing to have a clean shaven face.
	Award:  Forfeiture of $300.00 per month for 2 months, extra duty for 15 days.  Not appealed.

860313:	Counseled for deficiencies in performance and conduct.  [Unsatisfactory personal and professional conduct which results in frequent involvement with military authorities and violations of the UCMJ] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

860327:	NJP for violation of UCMJ, Article 86: Without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Squadron PT formation.
	Award:  Forfeiture of $100.00 per month for 2 months, restriction for 14 days.  Not appealed.

860416:	NJP for violation of UCMJ, Article 86: Did on or about 0730, 860408 fail to go to his appointed place of duty, to wit: Bldg 5604 and did remain so absent until 1000 860408; violation of UCMJ Article 86: Between 4-11 Apr 86 fail to go to his appointed place of duty, to wit: 3 AA meetings per week as directed by 1st MAW Counseling Center; UCMJ Article 92: Disobeying a lawful order issued by 1st LT M____, by failing to go to 3 AA meeting during the week of 4 - 11 Apr 86 as directed; violation of UCMJ Article 111: Did on or about 1735 7 Apr 86 operate a government M151 in a reckless manner on Hwy 58, Okinawa, by speeding and swerving through traffic.
	Award:  Forfeiture of $200.00 per month for 2 months (suspended for 6 months), restriction for 60 days (suspended for 6 months). Not  appealed.

860425:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

860425:  	Applicant advised of his rights and having elected 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.

860502:	That portion of the punishment impose and suspended on 860416 is hereby ordered executed.

860512:	NJP for violation of UCMJ, Article 86: Failure to go to appointed place of duty, to wit: Squadron PT formation at 0600 on 860502; violation of UCMJ Article 92: Failure to obey a lawful verbal order of Corporal E_____  to report to the Staff DNCO at 0700 on 860502; violation of UCMJ Article 92: Failure to obey the lawful order of Corporal R____ to get out of the rack at 0700 860502; violation of UCMJ Article 92: Violation of SqdO 11104.1B par 4.g(6), to wit: having a female guest in the barracks without proper authorization on or about 860508; violation of UCMJ Article 121: Larceny, to wit: steal 135 packs of cigarettes from the Armed Forces Exchange Service Vending machine located in barracks 490, Camp Butler Okinawa on 860507.    .
	Award:  Forfeiture of $300.00 per month for 2 months.  Not appealed.
	
860512:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  The factual basis for this recommendation was the individual's failure to conform to the standards of the Marine Corps.  This individual has received five NJP's and a summary court-martial during his enlistment.  He has been counseled concerning his deficiencies as evidenced by his service record.  His response has been further violations of the UCMJ.  By his action and inability to respond to counseling, this individual has demonstrated he has no potential for further honorable service. 

860522:	SJA review determined the case sufficient in law and fact.

860530:	GCMCA [CG, 1st MAW] 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 860624 under other than honorable conditions for misconduct due to a pattern of misconduct (A).  The Board presumed regularity in the conduct of governmental affairs (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).

In the applicant’s issue 1, the Board found that he is in error.  The applicant was not discharged solely for wearing an earring out in town.  He was discharged for a pattern of misconduct that included 5 NJP’s and one summary court-martial.  Clearly the applicant’s service warrants nothing more than the discharge issued.  Relief denied.

The following is provided for the applicant’s edification.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (E).  The applicant must be aware that 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, may be considered by the NDRB.  The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is highly recommended.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210 MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16C), Change 2, effective 15 Apr 84 until 28 Jul 87.

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 “afls14.jag.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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023