Author: CAP
Last saved by: Department of the Navy
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Docket No. MD02-00234

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

 ex-PVT, USMC
Docket No. MD02-00234

Applicant’s Request

The application for discharge review, received 020109, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  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 020731.  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, as submitted

1. To Whom It May Concern:

The purpose of this letter is to provide information I feel is important concerning the cause of my inappropriate behavior while in the Marine Corps, that led to my receiving a discharge "Under Other Than Honorable Conditions."

The main problems I had that affected my judgment while in the Marine Corps were: Immaturity; Alcohol Problems; Family Problems (daughter's illness and separation); Financial Difficulties; Depression.  Each of these problems contributed to my inability to properly handle the situations I found myself in, while in the Marine Corps; resulting in my making the wrong decision for the given situation.

I know that I let down my family, friends, the Marine Corps and myself. Over the years I have been able to reflect on my actions and realize I was in error.  I know now that I had other options for each situation, which I should have utilized.  Had I done so I would not have caused the problems I did.

While in the Marine Corps I received a Meritorious Mass and participated in Operation Desert Storm.  My proficiency and conduct was normally above 4. 1, prior to the incidents leading to my discharge.  I feel that my service was, for the most part, honorable.  At no time did I intentionally do something to harm the Marine Corps.  During Operation Desert Storm I preformed my duties honorably.  As a result I feel that at least I should have received a General Discharge Under Honorable Conditions.

Since my discharge I have maintained gainful employment and provide support for my wife and four children.  I have returned to school and am currently being trained in the computer field so that I may continue supporting my family and be an even more constructive member of my community.

Thank you for your time and consideration with my request.

Documentation

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

Copy of DD Form 214
Copy of Combat History-Expeditions-Award Record
Copy of Record of Service

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		880915 - 890731	COG

Period of Service Under Review:

Date of Enlistment:  890801		Date of Discharge:  911018

Length of Service (years, months, days):

	Active:    02  01  05
	Inactive:  None

Age at Entry:  21			Years Contracted:  4 

Education Level:  12			AFQT:  57

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0 (8)			Conduct:  3.2 (9)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Marksman Badge, NDSM, MM, CAR, SASM(w2*), SSDR

Days of Unauthorized Absence:  43

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:

900117:	Counseled concerning being absent from appointed place of duty, working party on 891219, and being asleep in the rack while in uniform and during working hours.

900131:	NJP for violation of UCMJ, Article 86: On or about 1300, 900121 was absent from appointed place of duty as Supernumerary at StudCoB, ScolsBn, MCCES, MCAGCC.
	Award:  Restriction for 7 days.  Not appealed.

900412:	NJP for violation of UCMJ, Article 86: On or about 0600, 900127 was absent from appointed place of duty, to wit: Restriction muster at StudCoB, ScolsBn, MCCES, MCAGCC. Violation of UCMJ, Article 86: UA(AWOL) from 0550, 900205 until 0100, 900321 (43 days/S) from StudCoB, ScolsBn, MCCES, MCAGCC.
	Award:  Forfeiture of $362.00 pay per month for 2 months, restriction and extra duty for 45 days.  Not appealed.

910305:	Counseled for deficiencies in performance and conduct.  [Frequent involvement with military authority.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

910307:	NJP for violation of UCMJ, Article 128: While at Operation Desert Storm, Camp Flatousn, DSA, Saudi Arabia, on or about 2205, 910302 commit assault upon LCpl T.G. G_ by striking him with a flashlight and his fists about the face and head and did thereby intentionally inflict bodily harm upon him, to wit: causing multiple lacerations and bruises to indicate the need for stitches.
	Award:  Reduction to E-1 (suspended for 6 months).  Not appealed.

910527:	NJP imposed and suspended on 910307 for a period of 6 months is hereby vacated and the punishment is ordered executed.

910530:	NJP for violation of UCMJ, Article 128: In that Pvt G_, did in the parking lot, Enlisted Club, KMCAS, HI, on or about 2235, 910509, assault HM3 T. D_ USN, who then was and was then known by the accused to be a petty officer of the United States Navy by repeatedly striking him in the head and face with his fist.
Awarded forfeiture of $168.00 pay per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

910912:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

910912:	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 applicant’s four non-judicial punishments.  

910916:	Applicant advised of 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.

910923:	SJA review determined the case sufficient in law and fact.

910924:	GCMCA [Commanding General, 1^st Marine Expeditionary Brigade] 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 911018 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 four occasions and adverse counseling entries on other occasions.  The applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service.  While he may feel that the problems he listed in his issues were factors that contributed to his actions, 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.  The applicant’s awards, combat record, and performance and conduct evaluations are not sufficient to mitigate his misconduct.  An upgrade would be inappropriate.  Relief denied.

The applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  The Board found no indication the applicant was unfairly denied any rights concerning his service and discharge.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred 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.  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.  Legal representation at a personal appearance hearing is highly 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; Article 128, assault.

C.  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.  

D.  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.

E.  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/A9301/A9317/A9307/A9311/9217/A9201/A9221