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Docket No. MD00-00885

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

 ex-PVT, USMC
Docket No. MD00-00885

Applicant’s Request

The application for discharge review, received 000706, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions.  The applicant requested a documentary record discharge review.  The applicant listed CIVILIAN COUNSEL as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010116.  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 (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  My discharge was inequitable because the incidents surrounding discharge were minor in nature involving disrespect rather than violence and/or drugs.  I attribute my actions to my immaturity and young age.

2.  Now that I am older and more mature I wish to pursue active duty either the coast guard, national guard and/or the marines.  The opportunity presented are tremendous.

3.  At this time I would request that my discharge be upgraded to honorable and/or general under honorable conditions.  Further, I would request that my reenlistment code be upgraded so as to present me to reenlist.  Once again, I apologize for my actions and hope you give me another opportunity.

Documentation

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

Copy of DD Form 214
Letter from J____ J. M______ Attorney at Law
Copy of Service Record (Applicant's copy) 

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		910326 - 910923	COG

Period of Service Under Review:

Date of Enlistment:  910924		Date of Discharge:  921002

Length of Service (years, months, days):

	Active:  01  00  04
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  38

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.00 (1)		Conduct:  4.1(1)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Marksman Badge 

Days of Unauthorized Absence:  2 

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

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

Chronological Listing of Significant Service Events:

920323:	NJP for violation of UCMJ, Article 92: Derelict in the performance of duties by not walking his post, violation of UCMJ, Article 91: Disrespect to SSgt C___ by mannerism and deportment, violation of UCMJ Article 86: UA (AWOL) 0700, 920311 to 0730, 920311, from AdminCo, SOI, MCB, CamLej, violation of the UCMJ Article 86: UA (AWOL) 1801, 920217 to 1200, 920220, from AdminCo, SOI, MCB, CamLej.
	Award:  Forfeiture of $392.00 per month for 2 months, restriction for 45 days, extra duty for 45 days (suspended for 6 months), reduction to E-1.  No appealed.

920520:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 134: (2 Specs), Spec 1: Break said restriction on 920401, Spec 2: Break said restriction on 920412. Charge II: violation of the UCMJ, Article 86: (2 Specs), Spec 1: Did on or about 920318, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Bldg TC743, SOI, located at MCB, CamLej, NC, Spec 2:Did on or about 920319, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Bldg TC743, SOI, located at MCB, CamLej, NC. Charge III: violation of the UCMJ, Article 91: Disrespectful in deportment toward SSGT M____ on 920319 by laughing while being counseled.
	Finding:  to Charge I and the specifications 1 and 2 thereunder, guilty, to Charge II and specifications 1 and 2 thereunder, guilty, to Charge III and specification thereunder, guilty.
	Sentence:  Confinement for 1 months, forfeiture of $523.00 pay per month for 1 month.
	CA action 920615:  Sentence approved and ordered executed.

920701:	Counseled for deficiencies in performance and conduct.  [Lack of reasonable effort, your failure to accept responsibility, your lack of accountability, lack of attention to detail and overall poor performance] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

920909:	Suspension of the NJP imposed and suspended on 920313 is hereby vacated and the punishment is ordered executed.

920909:	Counseled for deficiencies in performance and conduct.  [Lack of reasonable effort, your failure to accept responsibility, your lack of accountability, lack of attention to detail and overall poor performance] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

920909:	NJP for violation of UCMJ, Article 89: Disrespectful to LT M_____ by mannerism and deportment, violation of UCMJ, Article 91: Disrespectful to HN H_____ by mannerism and deportment.
Awarded forfeiture of $392.00 per month for 2 months, restriction and 
extra duties for 45 days.  Not appealed.

920910:	Commanding Officer, AdminCo, SOI, MCB, CamLej, NC recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  The factual basis for this recommendation was your one court martial and two NJP's.

920910:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to having one court martial and two NJP's.

920910:  	Applicant advised of his 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.

920916:	Commanding Officer, School of Infantry, MCB, CamLej, NC recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  The factual basis for this recommendation was your one summary court martial and two NJP's.

920926:	GCMCA [Commanding General] 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 921002 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 first and second issues the Board found that the applicant’s age, education level, and test scores qualified him for enlistment.  While he may feel that his immaturity was a factor that contributed to his actions, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service.  The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

In the applicant’s third issue, the following is provided for the applicant’s edification.  The NDRB is authorized to consider 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.  However, there is no law or regulation that 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 be found to have existed during the period of enlistment in question.  No such error or injustice is evident in the applicant’s service record.  Relief denied.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reentry into the naval service or any other of the Armed Forces.  The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy or Marine Corps.  Reenlistment policy of the naval service is promulgated by the Bureau of Naval Personnel, Pers-282, 5720 Integrity Drive, Millington, TN 38055, and the Commandant, United States Marine Corps, Code MMEA, 3280 Russell Road, Quantico, VA 22134.  Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment.  A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  Relief, is therefore, denied.

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.  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/A9455/A9235/A9301