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Docket No. MD03-00529

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

 ex-Pvt, USMC
Docket No. MD03-00529

Applicant’s Request

The application for discharge review was received on 20030211.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing before the traveling board closest to (blank).  The Applicant was informed that the Board first conducts a documentary review and that all hearings are held in Washington, D.C.  The Applicant did not list any 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.  “My discharge was inequitable because it was based on two incidents which occurred in a 29 month period with no other adverse action. My discharge states there is a pattern of misconduct. My service record was outstanding with honors and letters of accommodations from my previous commanding officer.

The first incident occurred during the month of August or September 1998 while station at Marine base in Bridgeport California I was ordered by my sergeant to report to a local hospital for a body fat test. At approx. 1200 I reported to motor pool to my assigned duties. At 1400 hours my sergeant ordered me leave to take my test. I reported to the hospital which is 60 miles north of the base. I arrived at the hospital about 1515. My wait was short and I was in and out in approx. 15 minutes. Upon my departure it began to rain and hail viscously I waited several minutes for it to subside. During that time I made several attempts to contacts my base. Collect calls were not accepted and the hospital refuse me the use of their phone. I got back at 1645 and I explained to my sergeant what had happen he did not reply only a gesture of “ok”. Then a week later my sergeant tell me to report to the sergeant major. Sergeant major informed me I had a charge sheet for being 15 minutes late unauthorized absence. My punishment was lost of rank, 30 days restriction with extra duties and $500.00 fine. I complied.

The second incident occurred during the month November approx. 2 week after serving my first restriction I was informed to report to command post to see sergeant major. I was informed that I was being busted down to private because of an unauthorized absence. I lost rank once again and I was assigned restriction 45 days with extra duties and another $500.00 fine. The unauthorized absence was missing drill practice. At this time I had been on this base since April 1998 this was the first time drill practice had taken place. No formal or informal means of communication was used to informed me of drill practice. I address this question to my commanding officer and got no reply. Once again I complied to restrictions.

In January 1999 I was called to the colonel office and counseled on the two prior incidents of unauthorized absence. The colonel ask me do I want to stay in the Marines I said yes but I don’t want to stay if I am continually treated unfairly and silenced with no defense. He stated he thought I had some type of discipline problem and he thought it would be best if got discharge. The colonel said he would request an administrative discharge which would take two or three months.
I was then dismissed. I do not feel these two incidents should label me unsuitable to be a Marine. I have always wanted to be a marine and would like to return to the corps. Your assistance in this matter is greatly appreciated.

Sincerely,

R_ W_ J_ Jr.”

Documentation

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

Two copies of DD Form 214
Seven pages from Applicant’s service record

PART II - SUMMARY OF SERVICE

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

	Active:    None
	Inactive: USMCR(J)		960726 - 960804	COG

Period of Service Under Review:

Date of Enlistment:  960805		Date of Discharge:  990115

Length of Service (years, months, days):

	Active:    02  05  11
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  10			AFQT:  32

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.9 (7)			Conduct:  3.9 (7)

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, CC

Days of Unauthorized Absence:  None

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:

980714:	Counseled for deficiencies in performance and conduct. [Habitual problem with being late to work.  This action will no longer be tolerated.  Your section has counseled you on at least three occasions in the past month.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980827:	NJP for violation of UCMJ, Article 86 (2 specs):
Specification 1: At 1000, 980826 absent himself from his place of duty, the MWTC Chowhall, until 0600, 980827.
Specification 2:  On 980826 fail to go to drill for the CG’s inspection.
Violation of UCMJ, Article 92: On 980814, fail to obey a lawful order by buying TAD Marines alcohol.
Violation of UCMJ, Article 107: On 980826, with intent to deceive, make an official statement to Sgt Laakso by telling him that “I have a doctors appointment with a psychiatrist in Carson City at 1200,” which statement was totally false.
Awarded forfeiture of $500.00 per month for 2 months (One month’s forfeiture suspended for one month), restriction and extra duties for 45 days (15 days suspended for six months), reduction to PFC.  Not appealed.

981015:	NJP imposed and suspended on 980827 vacated this date.

981021:	NJP for violation of UCMJ, Article 86: On 980929, fail to go to his appointed place of duty, to wit: GME.
Awarded forfeiture of $450.00 (suspended for one month), restriction and extra duties for 45 days (15 days suspended for six months), reduction to Pvt.  Not appealed.

981021:	Counseled for deficiencies in performance and conduct. [Involved in a pattern of misconduct.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

Undated:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by two non-judicial punishments and two page 11 counseling entries.

981118:	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.

981209:	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 two non-judicial punishments and two page 11 counseling entries.

981223:	SJA review determined the case sufficient in law and fact.

981224:	GCMCA [CG, MCB, CPCA] 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 19990115 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 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.  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 is inappropriate.  Relief denied.

The NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  

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 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 92, disobey a lawful order; and Article 107, false official statement.

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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