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Docket No. MD03-00565

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

 ex-Pvt, USMC
Docket No. MD03-00565

Applicant’s Request

The application for discharge review was received on 20030212.  The Applicant requests 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 20031229.  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. 6210.2.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1.  I respectfully ask the board to change the discharge to entry level separation or uncharacterized.  Thank you.”

“The reason I feel I have even an ounce of hope for this possibility is after adding all the days up on light duty I’m left with only a minute amount of full service days, presumably less than 180 days.  Thank you, again.”

Documentation

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

Copy of DD Form 214
        Letter from Applicant

PART II - SUMMARY OF SERVICE

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

	Active:    None
	Inactive: USMCR(J)		930409 - 931207	COG

Period of Service Under Review:

Date of Enlistment:  931208		Date of Discharge:  950818

Length of Service (years, months, days):

	Active:    01  08  01
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  81

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.1 (5)		Conduct:  3.7 (5)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  10 

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.2.

Chronological Listing of Significant Service Events:

940615:	NJP for violation of UCMJ, Article 86:  UA 1201, 940531 – 1633, 940606.
	Award:  Forfeiture of $275 pay per month for 2 months, restriction for 30 days.  Not appealed.

940615:	Counseled for deficiencies in performance and conduct.  [UA from 1201, 940531 to 1633, 940606.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940705:	NJP for violation of UCMJ, Article 86:  Failure to go at the time prescribed to Bks M-229 on 1230, 940623 and 0700, 940624 for class.
	Award:  Forfeiture of $200 pay per month for 2 months, restriction and extra duty for 45 days.  Not appealed.

940705:	Counseled for deficiencies in performance and conduct.  [Failure to go at the time prescribed to Bks M-229 on 940623 and 940624 for class.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

941005:	Counseled for deficiencies in performance and conduct.  [Established pattern of misconduct.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950504:	Counseled for deficiencies in performance and conduct.  [Dereliction of duty, i.e., failure to do assigned tasks in a timely manner, promotion warrants, and pg. 9 & 11 entries.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950714:	NJP for violation of UCMJ, Article 86: UA status from 0730, 950706 to 0830, 950710 and 0730, 950711 to 1030, 950711.  Violation of UCMJ, Article 92: Failed to obey BN Order 11101.5E by having a female in his BEQ room after authorized visiting hours on or about 0415, 950706.
Award:  Forfeiture of $427 pay per month for 2 months, restriction for 60 days, reduction to Pvt.  Appealed 950714.  Appeal denied 950726.

950801:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions as evidenced by three nonjudicial punishments and four official counseling entries.

950801:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights.

950801:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.  The factual basis for this recommendation was the Applicant’s performance and service record.  He has failed to take corrective action for his pattern of misconduct.  He must be “constantly monitored” and displays the characteristics of  “a malingerer who views his duties as an obstruction not a responsibility.”

950817:	SJA review determined the case sufficient in law and fact.

950817:	GCMCA [Commander, MCLB, Albany, GA] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19950818 under other than honorable conditions 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 issue is without merit.  His prolonged period on light duty neither mitigates his misconduct nor counts against his net period of active service.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  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 95until 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; 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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