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Docket No. MD00-00297

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

 ex-Pvt, USMC
Docket No. MD00-00297

Applicant’s Request

The application for discharge review, received 991228, 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 000831.  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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  With this application, I'm sending my respondent's exhibits.  It contains the statements of the Marines listed above as well as documentation from the Marcorsepman and the articles governing the UCMJ.

These documents & statements should be enough evidence to prove the fact that I still rate an honorable discharge, if by some chance the evidence provided is still questionable, please contact 1^st. Lt. D_ at 22 area base legal aboard camp pendleton CA.  The base operation can be reached a@ (number deleted).  The base operator should be able to direct you to 22 Area Base Legal

Documentation

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

Copy of DD Form 214
Copy of Admin Board Decision Process Flow Chart
Excerpts from the MARCORSEPMAN
Excerpts from the Commandant's Planning Guidance
Marine Corps Gazette Articles on Leadership, Zero Defect Mentality, and Attrition Rates
Lifelong Negative Effects of an OTH Discharge
Character reference dated February 16, 1999
Character reference undated
Character reference dated February 11, 1999
Personal statement

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		960425 - 960616	COG

Period of Service Under Review:

Date of Enlistment:  960617		Date of Discharge:  990318

Length of Service (years, months, days):

	Active:    02  09  02
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  42

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  NMF			Conduct:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  AFEM, SSDR, NUC, Letter of Appreciation

Days of Unauthorized Absence:  5 

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.3.

Chronological Listing of Significant Service Events:

970628:	Oceanside police report of domestic violence.

9707XX:	Applicant arrested for assaulting his wife.  Applicant acknowledged that he had hit and kicked his wife, but failed to accept responsibility for his actions.
970812:	Counseled for deficiencies in performance and conduct.  [Unbecoming a Marine for spouse abuse.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

970812:	Counseled for deficiencies in performance and conduct.  [Unauthorized absence and misuse of a government phone.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

970926:	Applicant completed Phase I of Men's group and enrolled in Phase II of Men's Group but did not attend.

971116:	Vista police report - reoffense - couple arrested.

971126:	Applicant arrested 2027, 26Nov97 for spousal abuse with injury.  Applicant being held by civil authorities pending $15,000.00 bail.  Applicant has a court date of 1330, 2Dec97.

971201:	Applicant issued a military protective order.

971203:	Applicant turned over to MP's.

980107:	Applicant to repeat Phase I and begin and complete Phase II. (deployed Jan98).

980112:	NJP for violation of UCMJ, Article 86:
Specification: Unauthorized absence 27Nov97 to 3Dec97 (6 days).
Violation of UCMJ, Article 128:
Specification: Assault wife by pushing her, pulling her hair on 26Nov97.
Awarded forfeiture of $35.97 per month for 7 days, restriction and extra duties for 14 days.  Forfeiture and restriction suspended for a 30 days.  Not appealed.

980124:	Counseled for deficiencies in performance and conduct.  [Failed to properly prepare his finances and support his wife during deployment.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

980127:	Counseled for deficiencies in performance and conduct.  [Failed to properly prepare himself and his family for deployment.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

980928:	Counseled for deficiencies in performance and conduct.  [Required to provide adequate spousal support as outlined within MCO P5800.16 (LEGADMINMAN.  Applicant has been counseled on two previous occasions concerning spousal support.  Counseled that he must provide adequate support for his spouse as long as he is married and continues to receive BAH on her behalf.  Applicant is currently providing $200 a month which is not adequate support.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

980928:	Counseled for deficiencies in performance and conduct.  [Failure to attend the Motorcycle Safety Course.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

980930:	Applicant returned and started Phase II.  He attended two sessions and each time was sent back to start Phase I.  Applicant not cooperative attended one session and did not return.  Applicant was a treatment failure.

981106:	NJP for violation of UCMJ, Article 90:
Specification: Willfully disobey lawful command on 1Nov98.
Violation of UCMJ, Article 111:
Specification: Drunk driving on 1Nov98.
Awarded forfeiture of $519.00 per month for 2 months, restriction and extra duties for 45 days, reduction to PFC.  No indication of appeal.

981111:	Counseled for deficiencies in performance and conduct.  [Disobedience of a lawful command and drunk driving.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

990115:	NJP for violation of UCMJ, Article 86:
Specification: Absence without leave 2Nov98-30Nov98, to wit: Family Advocacy Center Men's Education Program.
Violation of UCMJ, Article 90:
Specification: Orders violation.
Violation of UCMJ, Article 91:
Specification: Orders violation.
Violation of UCMJ, Article 92 (2 specs): General orders violation
Specification 1: Fail to obey a lawful general order on 16Dec98, to wit: not shaving before reporting to rifle range duty.
Specification 2: Derelict in performance of duty on 16Dec98, to wit: failed to wear his cami blouse.
Awarded forfeiture of $479.00 per month for 2 months, restriction and extra duties for 45 days.  Not appealed.

990128:	Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due to a Pattern of misconduct and misconduct due to Minor disciplinary infractions.

990204:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ, Article 27B, elected to appear before an Administrative Discharge Board.

990204:	Commanding officer recommended discharge under Other Than Honorable conditions by reason of misconduct due to Minor disciplinary infractions and/or a Pattern of misconduct.  The factual basis for this recommendation was seven page 11 entries and three nonjudicial punishments. 

990222:	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 and misconduct due to Minor disciplinary infractions, that the misconduct warranted separation, and recommended discharge General (under Honorable conditions).

980308:	SJA review determined the case sufficient in law and fact.

980310:	GCMCA [Commanding General, I Marine Expeditionary Force] directed the applicant's discharge General (under 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 990318 General (under 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 determined this issue is without merit.  The applicant claims the documents that he included with his application (excerpts from the Marine Corps Separations Manual), concerning reasons for discharge, are evidence enough to support upgrading his discharge.  The Board determined the separations manual fully supports the decision to separate the applicant for misconduct due to a pattern of misconduct.  The applicant did not provide sufficient documentation to consider post-service conduct as a reason to upgrade his discharge.  The Board determined the discharge was proper and equitable.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 Aug 95 until Present. 

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

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
INDEX:  A6750/A9453/A9221/A9217