Author: CAP
Last saved by: Department of the Navy
Company: NCPB

Docket No. MD03-00429

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

 ex-PFC, USMC
Docket No. MD03-00429

Applicant’s Request

The application for discharge review was received on 20030114.  The Applicant requests the characterization of service received at the time of discharge be changed to under honorable conditions.  The Applicant requests a documentary record discharge review.  The Applicant listed the Disabled American Veterans as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20031205.  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 OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1. “I went UA after coming back from Japan.  I was having family problems.  I returned Camp LeJuene NC on my own.  I was given punishment of 2 months brig time.  After I served my brig time I had 15 months of clean service.  About a week before I got my discharge they came up the company office sent a notice to my platoon that I was getting out.  I was never told what the character of service was going to be.  I feel that I had 18 months of good service before I went UA and another 15 months of good service after I paid the penalty for going UA.  I feel that a discharge upgrade to under honorable conditions is warranted.”

Additional issues submitted by Applicant’s representative (Disabled American Veterans):

2.  “Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current Other Than Honorable Discharge to that of General Under Honorable Conditions.

The FSM served on active service from October 14, 1992 to September 13, 1996 at which time he was discharged due to misconduct.

The FSM contends the discharge is unfair as he served his punishment of two months in the Brigg and then had fifteen months of good service afterward.

As this process was not allowed, this creates a need for a review of the application of the standard, for the Board to determine that the Applicant’s discharge was improper. The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted. See, SECNAVIST 5420.174 (c), Par. (f) (1).

In further support the FSM states that he went on un-authorized leave (UA) due to family problems initiated while he served in Japan. The FSM also notes that he feels that with eighteen months of good service before going UA and fifteen months of good service after completing punishment, he feels a General discharge would be more appropriate and equitable.

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the Applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174C.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the Applicant.

                                                               Respectfully,”

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)		920403 - 921013	COG

Period of Service Under Review:

Date of Enlistment:  921014		Date of Discharge:  960913

Length of Service (years, months, days):

	Active:    03  11  00	Does not exclude lost time
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  32

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.8 (11)			Conduct:  3.3 (12)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR

Days of Unauthorized Absence:  151

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:

930324:	Counseled for deficiencies in performance and conduct.  [Unauthorized absence from my appointed place of duty which was Barracks Security Watch.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

930923:	NJP for violation of UCMJ, Article 121:
Specification: Stole eight compact disks, one Kenwood portable CD player, one car cigarette lighter adapter, one car tape/CD adapter, and $80.00 in cash on 930910.
Violation of UCMJ, Article 123:
Specification: Alter light duty chit to read no duty on 930823.
Awarded forfeiture of $407.00 per month for 2 months, oral reprimand, restriction and extra duties for 45 days, reduction to Pvt.  Not appealed.

950111:	Counseled for deficiencies in performance and conduct.  [Violation of the UCMJ, specifically Article 86: on or about 940620 to 941116, you disobeyed a direct order by failing to report to your new duty station for duty.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950227:	Counseled for deficiencies in performance and conduct.  [Frequent involvement.  On 950224 stated that you took $3.00 from your roommate.  On 950227 you also stated that you took your roommate’s running shoes.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950310:	Special Court Martial:
	Charge I: violation of the UCMJ, Article 86:
	Specification 1: Unauthorized absence from 0001, 940617 to 1000, 941115 (151 days/surrendered).
	Findings: to Charge I and specification thereunder, guilty.
	Sentence: Confinement for 90 days, forfeiture of $500 per month for 3 months, reduction to Pvt.
	CA 950601: Sentence approved and ordered executed.

950310:	Applicant to confinement.

950523:	Applicant released from confinement.

960318:	Counseled for deficiencies in performance and conduct.  [On 960312, you reported to your appointed place of duty smelling of alcohol.  After being referred to the Battalion Medical Officer for evaluation, you were found unfit for duty due to alcohol consumption.  Illegal drug involvement; specifically, usage of marijuana identified by my own admission.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960320:	NJP for violation of UCMJ, Article 134:
Specification: Incapacitated for proper performance of duty on 960312 as a result of previous indulgence in intoxicating liquor.
Awarded forfeiture of $490.00 per month for 2 months, restriction and extra duties for 30 days.  Forfeiture suspended for 6 months.  Not appealed.

960423:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

960423:	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.

960710:	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 based upon repeated violations of the Uniform Code of Military Justice.  

960813:	SJA review determined the case sufficient in law and fact.

960827:	GCMCA [Commanding General, II Marine Expeditionary Force, U.S. Marine Corps Forces, Atlantic, Camp Lejeune, NC] 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 19960913 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).

Issues 1 and 2.  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 special 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.  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 P1900.16E), effective 18 Aug 95 until 30 Jan 97. 

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 for more than 30 days; Article 121, larceny; Article 123, forgery; and Article 134, incapacitated for duty.

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: