Author: CAP
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Docket No. MD03-00338

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

 ex-LCpl, USMC
Docket No. MD03-00338

Applicant’s Request

The application for discharge review was received on 20021217.  The Applicant requests that the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests 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 20031121.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct – Minor disciplinary infractions (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.2.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“My discharge was inequitable because it was based on one isolated incident in 28 months of service with no other adverse action.”

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)		870507 - 870727	COG

Period of Service Under Review:

Date of Enlistment:  870728		Date of Discharge:  901115

Length of Service (years, months, days):

	Active:    03  03  18
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  54

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.5 (9)			Conduct:  4.0 (9)

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  1

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

UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct-Minor disciplinary infractions (administrative discharge board required but waived), authority:  MARCORSEPMAN Par. 6210.2.

Chronological Listing of Significant Service Events:

880831:	NJP for violation of UCMJ, Article 92:
Specification: Violate BO B5000.2G. by operating a motor vehicle while under suspension/revocation of driving privileges.
Awarded forfeiture of $50.00 per month for 1 month.  Not appealed.

891003:	NJP for violation of UCMJ, Article 86:
Specification: Unauthorized absence 0645, 890918 to 1500, 890919 (1 day/surrendered).
Violation of UCMJ, Article 92:
Specification: Disobey a lawful order of Sgt R_ to report to MSgt M_ by 1300, 890919.
Awarded forfeiture of $189.00 per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

891128:	NJP for violation of UCMJ, Article 86 (3 specs):
Specification 1: Absent from appointed place of duty on 0631, 891025, to wit: Bn Cmdr remedial PT program.
Specification 2: Absent from appointed place of duty on 0631, 891026, to wit: Bn Cmdr remedial PT program.
Specification 3: Absent from appointed place of duty on 0630, 891030, to wit: Bn Cmdr remedial PT program.
Awarded forfeiture of $189.00 per month for 1 month, restriction and extra duties for 14 days.  Forfeiture and restriction suspended for 3 months.  Not appealed.

900201:	Applicant’s driving privileges reinstated on Camp Pendleton upon completion of remedial driver’s training program.

900209:	Vacate suspended forfeiture and restriction awarded at CO’s NJP dated 891128.

900209:	NJP for violation of UCMJ, Article 86 (2 specs):
Specification 1: Absent from appointed place of duty on 0631-0730, 900129, to wit: Remedial PT.
Specification 2: Absent from appointed place of duty on 0631-0730, 900130, to wit: Remedial PT.
Awarded forfeiture of $207.00 per month for 1 month, restriction for 14 days.  Restriction suspended for 4 months.  Appealed.  Decision on appeal not found in the service record.

900209:	Counseled for deficiencies in performance and conduct.  [Failure to adhere to the rules and regulations of the UCMJ.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

900816:	NJP for violation of UCMJ, Article 92 (2 specs):
Specification 1: Failed to obey EngMaintCoO 1600.1 of 900411, by having alcoholic beverages in Room 214, Barracks 5703 on 0900, 900710.
Specification 2: Derelict in performance of duties by willfully failing to prepare for reinspection, “room was unsat” on 0800, 900707.
Awarded forfeiture of $440.00 per month for 2 months, restriction for 60 days, and extra duties for 45 days, reduction to PFC.  No indication of appeal found in service record.

900903:	Applicant notified of intended recommendation for discharge under honorable conditions by reason of misconduct due to minor disciplinary infractions.  Applicant informed that the lowest characterization possible could be under other than honorable conditions.

900904:	Applicant advised of his 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.

901009:	Commanding Officer recommended Applicant be discharged under honorable conditions (general) by reason of misconduct due to minor disciplinary infractions.  The factual basis for the recommendation was the Applicant’s five non-judicial punishments and inability to respond to counseling for his deficiencies.

901017:	SJA review determined the case sufficient in law and fact.

901022:	CO, 3^rd FSSG directed discharge under honorable conditions (general) by reason of misconduct due to minor disciplinary infractions.  The factual basis for this recommendation was the Marine’s misconduct due to minor disciplinary infractions.  The Applicant has been counseled concerning his deficiencies.  By his actions and inability to respond to counseling, he has demonstrated that he has no potential for further military service. 

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19901115 under honorable conditions (general) for misconduct due to minor disciplinary infractions (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 Applicant’s discharge was based on several minor disciplinary infractions, not one incident.  A characterization of service of under honorable conditions (general) is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by award of nonjudicial punishment (NJP) on five 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.  An upgrade to honorable is inappropriate.  It must be noted that most Marines serve honorably and well and therefore earn honorable discharges.   In fairness to those Marines, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due.  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 92, disobey a lawful order.

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.
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