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Docket No. MD02-01006

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

 ex-PVT, USMC
Docket No. MD02-01006

Applicant’s Request

The application for discharge review, received 020708, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions and the reason for the discharge be changed to secretary authority.  The Applicant requested a personal appearance hearing discharge review before the Board in the Washington National Capital Region.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter to the Applicant, he was informed that the Naval Discharge Review Board first conducts a documentary review prior to any personal appearance hearing. 

Decision

A documentary discharge review was conducted in Washington, D.C. on 030331.  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/INVOL DIS (BOARD) (PATTERN OF MISCONDUCT), authority: MARCORSEPMAN Par. 6210.3.

 

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

Prior to the documentary discharge review, the Applicant introduced no issues as Block 8 on the DD Form 293 is blank. 

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		900523 - 910311	COG

Period of Service Under Review:

Date of Enlistment:  910312		Date of Discharge:  940713

Length of Service (years, months, days):

	Active:    03  04  02
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  33

Highest Rank:   LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.9 (9)			Conduct:  3.4 (9)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifleman Marksmanship Badge, NDSM, SSDR

Days of Unauthorized Absence:  2

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

UNDER OTHER THAN HONORABLE CONDITIONS/INVOL DIS (BOARD) (PATTERN OF MISCONDUCT), authority:  MARCORSEPMAN Par. 6210.3.

Chronological Listing of Significant Service Events:

920804:	NJP for violation of UCMJ, Article 86: Did on or about 0630, 920629, without authority, absent himself from his unit, to wit: Fox 2/11, a place which he was required to be, and did remain so absent until on or about 0730, 920701(2 days).
Awarded forfeiture of $213.00 pay per month for 1 months, restriction and extra duties for 14 days.  Not appealed.

921015:	NJP for violation of UCMJ, Article 86: Did on or about 0630, 920914; without authority, absent himself from his appointed place of duty, at which time he was required to be and did remain so absent until on or about 1830, 920914; violation of UCMJ, Article 91: Did having knowledge of a lawful order not to go out of bounds of MCB, Camp Pendleton, failed to obey the same, to wit: SNM flew to New York City without authority; violation of UCMJ, Article 107: Did on or about 920912, with intent to deceive make a false official statement to CPL T_ then known by the said LCPL M_ to be false, to wit: Stated that his father was in the hospital and that he had a confirmed Red Cross message.
	Award:  Forfeiture of $218.00 pay per month for 1 month, restriction and extra duty for 14 days.  No indication of appeal in the record.

930127:	Counseled for deficiencies in performance and conduct.  [Weight not maintained within Marine Corps standards in accordance with MCO 6100.10B.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

930512:	NJP for violation of UCMJ, Article 121: Did on or about 1700, 930427 steal (1) cassette tape from the Marine Corps Exchange, Marine Corps Base, Twentynine Palms, CA.
	Award:  Forfeiture of $200.00 pay per month for 2 months, restriction and extra duty for 30 days, reduction to E-2.  No indication of appeal in the record.

931215:	Counseled for deficiencies in performance and conduct.  [Weight not maintained within Marine Corps standards.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

931215:	Counseled for deficiencies in performance and conduct.  [Violation of Article 121, UCMJ in that SNM stole a tape from the exchange at 29 Palms, CA on 930427.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

931215:	Counseled for deficiencies in performance and conduct.  [Violation of Article 86 (UA), and frequent involvement of a discreditable nature with military authorities.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

931215:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 86.
	Specification: Did on or about 930902 without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Battalion Rover, at 0100.
	Finding:  to Charge I and the specification thereunder, guilty.
	Sentence:  Forfeiture of $537.00 pay per month for 1 month, reduced to E-1.
	CA action 931229:  Sentence approved and ordered executed.

940126:	Guns Platoon Commander, Battery F, 2^ND Battalion, 11^th Marine recommendation for separation.

940204:	First Sergeant, Battery F recommended discharge under other than honorable conditions.

940206:	Commanding Officer, Battery F, 2^nd Battalion, 11^th Marines recommended discharge under other than honorable conditions due to a pattern of misconduct.

940208:	Counseled for deficiencies in performance and conduct.  [Seen loitering at the PX for over 45 minutes.  Appointed place of duty at the appointed time was BAS/RAS.  Failure to be at appointed time is noted as deficient.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940208:	Platoon Commander, Guns Platoon, Battery E recommendation for separation.

940208:	First Sergeant, Battery E recommendation for separation.

940208:	Platoon Sergeant, Guns Platoon, Battery E recommendation for separation. 

940223:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and minor disciplinary infraction.

940304:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

940307:	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 three nonjudicial punishments (two for Article 86, one for Article 91, 107, 121) and one Summary Court- Martial for violation of Article 86.  Due to SNM's actions, he obviously has no regard for the rules and regulations that govern the United States Marine Corps. 

940426:	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, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

940610:	SJA review determined the case sufficient in law and fact.

940711:	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 940713 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 two occasions, one summary court-martial 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 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.  A pattern of misconduct is the narrative reason that most clearly describes the circumstances surrounding the Applicant’s processing for administrative separation.  An upgrade would be inappropriate.  Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity is evident 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 P1900.16D), 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 91, disobeying a lawful order of a non-commissioned officer; Article 107, false official statements; Article 121, larceny.

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:  A6710/A0100/A9500/A9217/A9223/A9225