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Docket No. MD03-00812

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

 ex-Pvt, USMC
Docket No. MD03-00812

Applicant’s Request

The application for discharge review was received on 20030403.  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 20040224.  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 average proficiency and conduct marks were good.  I always did my best when it came to my job and being there for my fellow Marines.

2.  I was so close to my original EAS that it was unfair to give me an other than honorable discharge.  The circumstances surrounding my discharge were personal and family problems.

3.  My record of NJP’s/Article 15’s indicates minor offenses that could’ve been resolved at unit level concealing and guidance.

4.  I received awards and decorations.  One of which included the Navy and Marine Corps Achievement Medal.  There were also other acts of merit.”

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
        Officer of the Day Logbook extract from 18 December 2001
        Twenty-nine pages from the Applicant’s service record

PART II - SUMMARY OF SERVICE

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

	Active:    None
	Inactive: USMCR(J)		981110 - 981130	COG

Period of Service Under Review:

Date of Enlistment:  981201		Date of Discharge:  020719

Length of Service (years, months, days):

	Active:    03  07  19
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  10			AFQT:  51

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.8 (10)			Conduct:  3.7 (10)

Military Decorations:  None

Unit/Campaign/Service Awards:  NMCAM, SSDR, NDSM, RMM

Days of Unauthorized Absence:  30

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:

000328:	NJP for violation of UCMJ, Article 92: Disobeyed lawful order from SSgt K_ not to drive his vehicle while his license was suspended.
Awarded forfeiture of $273.00, restriction and extra duties for 14 days (all suspended for 6 months).  Not appealed.

001021:	NJP for violation of UCMJ, Article 92: Violated MCO 5800.16a by wrongfully failing to provide support to his spouse.
Awarded forfeiture of $585.00 per month for 2 months (suspended for 6 months), restriction and extra duties for 45 days.  Not appealed.

011101:	NJP for violation of UCMJ, Article 92 (3 specs):
Specification 1:  On 010929, disobeyed Base Magistrate by driving on base.
Specification 2:  During July 01, failed to obey Base Regulation 5560.2k, by driving on base with a suspended license.
Specification 3:  During April 01, disobeyed Battery Commander by driving on base with a suspended license.
Violation of UCMJ, Article 86: Absent from DIC.
Awarded forfeiture of $584.00 per month for 2 months, restriction and extra duties for 45 days, reduction to E-2 (all suspended for 6 months).  Not appealed.

011211:	Vacate suspended sentence from NJP dated 011101.

011219:	Summary Court-Martial.
		Charge I: Violation of UCMJ, Article 86: UA from 0930-1300, 011210.
		Charge II: Violation of UCMJ, Article 92 (3 specs):
Specification 1:  On 011210, failed to sign a military protection order concerning domestic abuse.
Specification 2:  Disobey military protection order by going to spouse’s residence on 011210.
Specification 3:  During April 01, disobeyed Battalion Commander by driving on base with a suspended license.
Findings: Guilty to Charge I, Not Guilty to Charge II.
Sentence: Forfeiture of $779.00 (suspended for 6 months), confinement for 30 days.
011220: CA approved sentence, directed no suspension of forfeiture and ordered executed.

020108:	Counseled for deficiencies in performance and conduct.  [Violations of UCMJ, Article 92 on 000328, 001021, and 011101.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020326:	Counseled for deficiencies in performance and conduct.  [Classified as a treatment failure by the Spouse Abuse Case Review Committee, SACRC.  Reports of domestic violence 27 Nov 01, reports of child neglect 21 Feb 02 (as determined by CRC committee, which substantiated child neglect injurious environment against both, Level III).]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020531:	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 page 11 entries, three nonjudicial punishments, and one summary court-martial.  

020603:	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.

020604:	NJP for violation of UCMJ, Article 92: Violated lawful order from Capt. D_ by wrongfully locating himself within 100m of his wife on 011218; violation of UCMJ, Article 107: Falsely stating he had a “Peers” meeting to attend on 011218; violation of UCMJ, Article 134: Break restriction on 011218.
Awarded forfeiture of $552.00 per month for 2 months, restriction and extra duties for 45 days, reduced to Pvt, oral reprimand.  Not appealed.

020607:	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 page 11 entries, three nonjudicial punishments, and one summary court-martial.  

020608:	To UA.

020704:	From UA.

020708:	SJA review determined the case sufficient in law and fact.

020711:	GCMCA [CG, 2d MARDIV] 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 20020719 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.  The Applicants average proficiency and conduct markings are below the standard required for honorable service and do not provide a basis for relief.  Relief denied.

Issues 2-4.  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 four 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.  The positive aspects of the Applicant’s record do not mitigate his misconduct.  While he may feel that his personal problems were factors that contributed to his actions, 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 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 [e.g., Article 86, unauthorized absence for more than 30 days].

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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