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

 ex-PFC, USMC
Docket No. MD02-00338

Applicant’s Request

The application for discharge review, received 020129, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to medical.  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 020912.  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 and narrative reason of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  I am writing to enlist your assistance in changing my discharge status of OTH to that of Honorable or medical.  Although I know I am guilty of some military infractions including having an AWOL charge against me; I feel that I do not deserve the status of OTH nor do I deserve the miss out of those benefits that would help me in the security of my family. I am a husband and father of two sons.  I feel it is unjust to have left me with no benefits whatsoever and to have also left a cloud of doubt lingering over my name with an OTH discharge.I ask simply that you assist me in this matter.  I ask that you reconsider not for my benefit but for the benefit of my two sons who look to me for their survival.  My parents reared four sons and one daughter with no government assistance just the accomplishments of my father livelihood.  I need to do the same for my progeny.  I also ask that you deliver your reply as soon as you may reasonably do so.  Thank you for your understanding and your sense of humanity in this endeavor.

Documentation

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

Copy of medical report dated August 3, 1999
Copy of progress notes dated August 3, 1999
Copy of radiology department report dated August 4, 1999 (2 copies)
Copy of DD Form 214
DD Form 149 dated April 27, 2001
Letter from Member of Congress dated March 14, 2001
Letter from Board for Correction of Naval Records dated June 19, 2001

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		970110 - 970127	COG

Period of Service Under Review:

Date of Enlistment:  970128		Date of Discharge:  991230

Length of Service (years, months, days):

	Active:    02  11  03
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  47

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (5)			Conduct:  3.4 (6)

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  108

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.3.

Chronological Listing of Significant Service Events:

970625:	NJP for violation of UCMJ, Article 91:
Specification: Disrespectful toward a Sgt on 0700, 26 Jun 97, to wit: by saying in a loud and boisterous manner "I'm not taking the ammo.”
Awarded forfeiture of $210.00 per month for 1 month, restriction and extra duties for 14 days.  Restriction and extra duty suspended for 6 months.  Not appealed.

970724:	NJP for violation of UCMJ, Article 86:
Specification: Unauthorized absence from Marine Battery, 2/80^th, Ft. Sill, OK on 2300, 10 Jul 97.
Awarded forfeiture of $235.00 per month for 1 month, restriction and extra duties for 14 days.  Forfeiture suspended for 3 months.  Not appealed.

971201:	Counseled for deficiencies in performance and conduct.  [Drinking under age; misconduct; disrespect toward a non commissioned officer.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980618:	Special Court-Martial.
	Charge I: Violation of the UCMJ, Article 86:
	Specification: Unauthorized absence from 0631, 5 Jan 98 through 1430, 23 Apr 98 (108 days/surrendered).
	Findings: To Charge I and specification thereunder, guilty.
	Sentence: Forfeiture of $600.00 per month for 2 months, confinement for 75 days, reduction to PFC.
	CA 980831: Sentence approved and will be executed.

980618:	Applicant to confinement.

980819:	Applicant from confinement.

990727:	Counseled for deficiencies in performance and conduct.  [UA from appointed place of duty from 0630-1300 on 7 Jul 99.  The failure to follow simple instructions such as being in the appointed place of duty at an appointed time is evidence of a serious lack of motivation and an apathetic attitude.   Applicant has been counseled on this deficiency on occasions in the past.  The fact that he still shows no improvement with being on time shows a lack of discipline and willingness to change.  This insubordination and immaturity is unacceptable and will not be tolerated.  Any further occurrences of this type will result in a minimum of NJP.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990803:	Orthopedic Consultation from Sneads Ferry Clinic: Diagnosis: Slipped capital femoral epiphysis, bilateral.  Disposition: Examiner's opinion, the patient will not be able to return to his regular strenuous physical activity as a Marine.  

990803:	Onslow Memorial Hospital, Radiology Department: Lumbar Spine Impression: Normal alignment.  Possible right PARS defect at L5.  Right Hip Impression: Status post right hip surgery.

991005:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of fraudulent entry into the Marine Corps and misconduct due to a pattern of misconduct.

991005:	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.

991022:	Commanding Officer, 2d Battalion, 10^th Marines, Camp Lejeune, NC recommended discharge under other than honorable conditions by reason of fraudulent enlistment (medical) and misconduct due to a pattern of misconduct.  The factual basis for this recommendation was based upon the respondent's current medical assessment as given by both military and civilian doctors in enclosures (4), (5), and (6), as well as by the standard page 93 of the respondent's medical records; and also by the respondent’s record of non-judicial punishments, special court-martial, and negative counseling entries during the current enlistment.  

991214:	SJA review determined the case sufficient in law and fact.

991217:	GCMCA [Commanding General, 2d Marine Division, II Marine Expeditionary Force] 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 991230 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.  The Veterans Administration determines eligibility for post-service benefits, not the NDRB.  There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans’ benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  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 two non-judicial punishments, a special court-martial, and negative counseling entries.  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 a characterization of service under honorable conditions.  No other narrative reason more clearly describes the circumstances surrounding the applicant’s processing for administrative separation.  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.  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.  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.  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 P1900.16E), effective 31 Jan 97 until Present. 

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 91, disrespect to a NCO.

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