Author: CAP
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Docket No. MD03-00987

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

ex-PFC, USMC
Docket No. MD03-00987

Applicant’s Request

The application for discharge review was received on 20030512.  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 20040408.  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

No issues were submitted by the Applicant. 

Documentation

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

Meritorious Mast certificate, dated July 1, 1999
Letter to Applicant’s father, dated February 27, 2001

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		990216 - 990223	COG

Period of Service Under Review:

Date of Enlistment:  990224			Date of Discharge:  020321

Length of Service (years, months, days):

	Active:    03  00  28
	Inactive:  None

Age at Entry:  17 Parental Consent		Years Contracted:  4

Education Level:  10 GED			AFQT:  58

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.1 (9)				Conduct:  3.5 (9)

Military Decorations:  None

Unit/Campaign/Service Awards:  MM

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:

000427:	Counseled for deficiencies in performance and conduct.  [Pending summary court-martial.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000524:	Special Court Martial:
	Charge I: violation of the UCMJ, Article 92:
	Specification: Violate a general order on 000122.
	Charge II: violation of the UCMJ, Article 134:
	Specification: Wrongfully had sexual intercourse with a woman not his wife on 991125.
	Findings: to Charge I and II and specifications thereunder, guilty.
	Sentence: forfeiture of $670 per month for 6 months, restriction for 60 days, hard labor for 45 days, reduction to Pvt, and a reprimand.  Per Rule for Courts-Martial 1003 (b)(1), a court-martial cannot specify the terms or wording of a reprimand and it shall be issued in writing by the convening authority.  Additionally, the reprimand, the restriction and hard labor without confinement cannot be imposed until the convening authority approves the sentence.
	CA:  Not found in service record.

011119:	Counseled for deficiencies in performance and conduct.  [Dereliction of duty and lack of judgment which resulted in the disobedience of a lawful order from a Staff Non-Commissioned Officer, Article 92 on 011117.  After specifically being told not to drink alcohol if under the age of 21 years, you failed to make sure that you did not consume any type of alcohol.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

011204:	NJP for violation of UCMJ, Article 92:
Specification: Wrongfully drinking alcoholic beverages before the age of 21.
Awarded forfeiture of $322.00 per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

011207:	Medical evaluation found Applicant to be an alcohol abuser.  Completed outpatient treatment on 001109 but has continued drinking.

020103:	Counseled for deficiencies in performance and conduct.  [Dereliction of duty and lack of judgment which resulted in the disobedience of a lawful order from a Staff Non-Commissioned Officer not to drink any alcohol, because SNM was under the legal age of 21.  You failed to ensure that you did not consume any type of alcohol.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020118:	NJP for violation of UCMJ, Article 92:
Specification: Fail to obey a lawful order on 0200, 011223, to wit: instructed not to drink underage by senior enlisted Marines in the Battalion.
Awarded forfeiture of $619.00 per month for 2 months, restriction and extra duties for 45 days.  Not appealed.

020204:	Counseled for deficiencies in performance and conduct.  [Pattern of misconduct paragraph 6210.3.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020211:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

020211:	Applicant advised of 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.

020211:	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 your nonjudicial punishment held on 020118 and your special court-martial held on 000524.  

020222:	SJA review determined the case sufficient in law and fact.

020301:	GCMCA [Commanding General, 1^st Marine Division (Rein)] 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 20020321 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).

No issues were submitted to the Board for consideration.  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.  An upgrade is inappropriate.  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 92, disobey a lawful order; and Article 134, sexual intercourse with a woman not his wife.

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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