Author: CAP
Last saved by: Department of the Navy
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Docket No. MD03-01026

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

 ex-PFC, USMC
Docket No. MD03-01026

Applicant’s Request

The application for discharge review was received on 20030516.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a documentary record 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 20040423.  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.  In addition to upgrading my discharge, I also request an upgrade for my re-entry code.  At present it stands at RE-4, I would like it to be upgraded to R-3.  The reason for this request is to re-enlist. I feel that with the war that is going on, the United States Armed Forces needs as many able bodied personnel as possible.”

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		940225 - 940301	COG

Period of Service Under Review:

Date of Enlistment:  940302		Date of Discharge:  980120

Length of Service (years, months, days):

	Active:  03  10  19
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  49

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.6 (10)		Conduct:  3.4(10)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SASM, AFEM, SSDR(w1*), COA, JUCA, Rifle Marksman 

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. 6210.2.

Chronological Listing of Significant Service Events:

941122:	Counseled for deficiencies in performance and conduct.  [Lack of attention to detail when failing to speak up about name tapes.  Unsat military appearance while manning the rails and on daily basis.  Failing to adhere to orders specifically when keys were lost] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950306:	Counseled for deficiencies in performance and conduct.  [Misconduct as evident by your recent office hours.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950306:	NJP for violation of UCMJ, Article 92: Having knowledge of a lawful order issued by berthing NCO’s to put his clothing in the laundry, an order it was his duty to obey, did, aboard USS ESSEX, fail to obey the same by not putting his dirty clothes in the company laundry, violation of UCMJ, Article 134: Disorderly by failing to maintain proper hygiene, which conduct was to the prejudice of good order and discipline in the armed forces.
Awarded forfeiture of $100.00 pay per month for 1 month, restriction and 
extra duties for 14 days.  Not appealed.

950317:	Counseled for deficiencies in performance and conduct.  [Misconduct as evident by your recent office hours.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950317:	NJP for violation of UCMJ, Article 113: (2 Specifications), Specification 1: On or about 1445, 950302 on board USS ESSEX, being on post as a sentinel in the hangar deck, did leave his post before he was relieved, Specification 2: On or about 0845, 950303 on board USS ESSEX, being on post as a sentinel in the Upper Vehicle deck, was found asleep upon his post.
	Award:  Forfeiture of $427.00 pay per month for 2 months (forfeiture of $354.00 pay per month for 1 month suspended for 6 months), restriction for 60 days, reduction to E-1.  Not appealed.

950724:	Counseled for deficiencies in performance and conduct.  [Failure to qualify with the M16A2 service rifle after two consecutive ranges] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960628:	Counseled concerning the loss of Meal Card.

960809:	Counseled for deficiencies in performance and conduct.  [Failure to maintain proper uniforms, UA from assigned guard post, a basic lack of military bearing, and a nonprofessional attitude toward the corps] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

961024:	NJP for violation of UCMJ, Article 92: (3 Specifications), Specification 1: On or about 960923, fail to obey a lawful order from Cpl P__, to wit: To bring all the uniforms items on the field list in for inspection at 1300, 960924; Specification 2: On or about 960924, fail to obey a lawful order from Cpl P__, to wit: To bring all the uniforms items on the field list in for inspection at 1300, 960925, Specification 3: On or about 960925, fail to obey a lawful order from Cpl P__, to wit: To bring all the uniforms items on the field list in for inspection at 1200, 960926.
	Award:  Forfeiture of $228.00 pay per month for 1 month (suspended for 6 months), restriction and extra duty for 14 days.  No indication of appeal in the record.

970220:	Counseled for deficiencies in performance and conduct.  [Lack of maturity and initiative in failing to maintain minimum standards of personal uniform appearance and grooming regulation] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970410:	Counseled for deficiencies in performance and conduct.  [Involving misconduct, specifically failure to follow lawful orders, lack of integrity and lack of maturity in that you failed to maintain your Armed Forces Identification (AFID) Card on your person while deployed to a foreign country and then lying about your AFID Card’s whereabouts] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970904:	Counseled for deficiencies in performance and conduct.  [Lack of maturity and professionalism and a lack of good personal hygiene, by your failure to brush your teeth, living in a dirty room and failing to maintain good clean uniforms] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970912:	NJP for violation of UCMJ, Article 91: Did on or about 1800, 970904 disobeyed Sgt M____’s order to wash all of his dirty clothes..
	Award:  Restriction and extra duty for 14 days.  No indication of appeal in the record.

971029:	Counseled for deficiencies in performance and conduct.  [Violation of Article 91, by failing to obey the order of a non-commissioned officer in the United States Marine Corps] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

971029:	NJP for violation of UCMJ, Article 91: Did on or about 0600, 971008 disobeyed Sgt M____’s order to clean his room, take out the trash out of one wall locker and clean the clothes in another.
	Award:  Restriction and extra duty for 14 days.  No indication of appeal in the record.

971208:	Counseled for deficiencies in performance and conduct.  [Lack of personal hygiene, by your failure to brush your teeth, living in a dirty room, and failing to maintain good clean uniform.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

xxxxxx:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of unsatisfactory performance and misconduct due to minor disciplinary infractions. {Date not legible}.

971208:  	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.

971208:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct and unsatisfactory performance.  The factual basis for this recommendation was unsatisfactory performance as evidenced by your service record book.  During your current enlistment in the Marine Corps, you have received an average proficiency mark of 3.7, 13 adverse page 11 entries and 5 NJP’s. 

971218:	SJA review determined the case sufficient in law and fact.

971228:	GCMCA [Commanding General] 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 19980120 under other than honorable conditions for misconduct due to minor disciplinary infractions (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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 (C and D).

Issue 1.   To permit relief, an error or inequity must be found to have existed during the period of enlistment under review.  There was nothing in the records, nor did the applicant provide any documentation, to indicate there existed an error of fact, law, procedure, or discretion at the time of discharge.  The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and/or the reason for discharge if such change is warranted.  There is no evidence of impropriety or inequity in the Applicant’s discharge.  The Applicant’s misconduct is clearly documented.  Therefore, relief is denied. 

Concerning a change in reenlistment code, 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.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time.  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.  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.  

C.  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.

D.  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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