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Docket No. MD03-00892

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

ex-Pvt, USMC
Docket No. MD03-00892

Applicant’s Request

The application for discharge review was received on 20030415.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a personal appearance hearing before the Board in the Washington National Capital Region.  The Applicant was advised that his case will first receive a documentary review.  The Applicant listed the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040415.  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.  “The character of discharge was too harsh for the offenses committed and continues to have an adverse impact on my ability to find employment I seek since my discharge.

2.  I had attended and completed an alcohol impact course at the U.S.M.C. substance abuse counseling center prior to my discharge and had no further alcohol related incidents.”

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

“3.  (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.”

Documentation

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

Applicant’s DD Form 214
Letter to Commanding General, undated
VA Form 21-22, Appointment of Veterans Service Organization as Claimant’s Representative, dated January 22, 2003
Small Arms Repairer (USMC) Course diploma, dated August 10, 1999 to October 18, 1999
Certificate of Completion, dated July 27, 2001

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		990226 - 990414	COG

Period of Service Under Review:

Date of Enlistment:  990415		Date of Discharge:  010930

Length of Service (years, months, days):

	Active:    02  05  16
	Inactive:  None

Age at Entry:  23			Years Contracted:  4

Education Level:  11			AFQT:  56

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):*

Proficiency:  4.1			Conduct:  3.9

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR

Days of Unauthorized Absence:  None

*Extracted from personal data sheet, undated

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:

000301:	Counseled for deficiencies in performance and conduct.  [Applicant is not recommended for promotion from 000301 to 000331.  Applicant is not recommended due to failure to pass Marine Corps PFT and six pounds over weight limit.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000303:	Counseled for deficiencies in performance and conduct.  [Applicant has been verbally counseled during the month of February for his weight limit and failure to pass the Marine Corps PFT.  Applicant scored a 92 on his PFT verified by SSgt R_ and was weighed in at 231 pounds, six pounds over his weight limit.  Applicant has failed to loose weight and pass the PFT.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

001121:	NJP for violation of UCMJ, Article 91:
Specification: Insubordinate conduct toward a noncommissioned officer, on 2200, 001031, by saying “Fuck you, fuck all of you.”
Violation of UCMJ, Article 92:
Specification: Failure to obey order or regulations, on 2200 given by Sgt G_ to hit the rack because SNM was too drunk and disruptive.
Violation of UCMJ, Article 134:
Specification: Disorderly conduct, drunkenness on 2200, 001031.
Awarded forfeiture of $465.00 per month for 2 months, restriction and extra duties for 45 days, reduction to Pvt.  Not appealed.

001122:	Counseled for deficiencies in performance and conduct.  [Lack of judgment, and insubordinate conduct towards a NCO during a unit deployment to Camp Fuji, Ja.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010328:	Substance Abuse Screening: Applicant found to be an alcohol abuser and recommended to attend alcohol impact.

010507:	NJP for violation of UCMJ, Article 91:
Specification: Insubordinate conduct towards a noncommissioned officer on 0400, 010203, to wit: by saying to Sgt “Fuck you, I don’t need to listen to you, your nothing to me.”
Violation of UCMJ, Article 92:
Specification: Failure to obey order or regulation on 0400, 010203, to wit: refusing to sit and show I.D.
Violation of UCMJ, Article 95:
Specification: Resistance, flight, breach of arrests and escape on 0400, 010203, to wit: resisted when MP tried to restrain him. 
Violation of UCMJ, Article 134 (2 specs):
Specification 1: Disorderly conduct, drunkenness on 0400, 010203.
Specification 2: Unlawfully carry a concealed weapon on 0400, 010203.
Awarded forfeiture of $521.00 per month for 2 months, restriction and extra duties for 45 days.  Forfeiture suspended for 6 months.  Not appealed.

010612:	Vacate suspended forfeiture awarded at CO’s NJP dated 010507.

010614:	NJP for violation of UCMJ, Article 92:
Specification: Violated liberty risk order on 010607 by leaving the base camp and consuming alcohol while on liberty risk status.
Awarded forfeiture of $521.00 per month for 2 months, restriction and extra duties for 45 days.  Not appealed.

010621:	Counseled for deficiencies in performance and conduct.  [Pattern of misconduct.  On three separate occasions you have been the subject of NJP at the Bn level.  Your lack of discipline, maturity and judgment to follow orders will not be tolerated.  You have been given opportunities to correct your deficiencies.]

010723:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.

010723:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

010725:	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 your numerous violations of the UCMJ, to include insubordinate conduct towards a noncommissioned officer (two offenses), failure to obey an order or regulation (three offenses), drunk and disorderly conduct (two offenses), and carrying a concealed weapon, resistance, flight, breach of arrests and escape, as supported by your three nonjudicial punishments and three page 11 entries.  

010820:	Applicant unconditionally waived right to an administrative discharge board.

010823:	SJA review determined the case sufficient in law and fact.

010829:	GCMCA [Commanding General, Marine Corps Base Hawaii] 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 20010930 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).

Issues 1-3.  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 three 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 or under honorable characterization of service.  The Applicant’s attendance at an alcohol impact course does not mitigate his misconduct.  An upgrade is inappropriate.  Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  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, to enhance employment opportunities, or for 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 91, insubordinate conduct toward a NCO; Article 92, disobey a lawful order; Article 95, breach of arrest; and Article 134, disorderly conduct.

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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