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Docket No. MD03-01096

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

ex-Pvt, USMC
Docket No. MD03-01096

Applicant’s Request

The application for discharge review was received on 20030610.  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 listed private counsel as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040608.  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.  I feel my discharge was inequitable because at the time I was only 19 years old and now the responsibility of being married with a child on the way I was under great stress and when I returned to Camp Pendleton with my wife my immediate supervisors made it very clear that they were unhappy with my marital status.  They had tried dissuade me from doing what I thought was right and when I disobeyed them in May 2001 I was never treated the same.  I did seek assistance from chaplain but he was unable to help.  At this time I think I would be of great assistance to military in my mos.”

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		000623 - 000909	COG

Period of Service Under Review:

Date of Enlistment:  000910		Date of Discharge:  011221

Length of Service (years, months, days):

	Active:    01  03  12
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  36

Highest Rank:  Pvt

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  NMF*			Conduct:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  56

* No Marks Found in the service record

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:

001208:	NJP for violation of UCMJ, Article 86:  UA from 2359, 001124 to 2320, 001201.  
Awarded forfeiture of $502.00.  Not appealed.

001208:	Counseled for deficiencies in performance and conduct.  [Unauthorized absence.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010118:	NJP for violation of UCMJ, Article 86:  UA from 0500, 001211 to 2200, 010107.  
Awarded forfeiture of $521.00 per month for 2 months.  Not appealed.

010118:	Counseled for deficiencies in performance and conduct.  [Unauthorized absence.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010328:	NJP for violation of UCMJ, Article 86:  UA from 0715, 010220 to 2200, 010320.  
Awarded forfeiture of $521.00 per month for 2 months, restriction and extra duties for 30 days.  Not appealed.

010328:	Counseled for deficiencies in performance and conduct.  [Unauthorized absence.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

011012:	NJP for violation of UCMJ, Article 86:  Absent from appointed place of duty; violation of UCMJ, Article 108:  Destruction of military property.
Awarded forfeiture of $521.00 per month for 2 months, restriction and extra duties for 45 days.  Suspended for 3 months.  Not appealed.

011127:	NJP for violation of UCMJ, Article 86:  Absent from appointed place of duty; violation of UCMJ,
Article 92:  Failure to obey a lawful order.    
Awarded restriction and extra duties for 45 days.  Not appealed.

011210:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

011210:	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.

011210:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  Commanding Officer’s comments:  “Prior to arriving at this command, Private W_ (Applicant) received three non-judicial punishments dated 08 December 2000, 18 January 2001, and 28 March 2001, all for violations of Article 86.  Since arriving at this command SNM received company level NJP on 12 October 2001 for violations of Article 86 and 108.  SNM also received NJP on 27 November 2001 for violations of Article 92 and 134.  As a result of the NJP held on 12 Oct 01, SNM was awarded 45 days restriction and 45 days “house restriction.”  The command knew his wife was more than 8 months pregnant, he would stand his restriction at home, in order to help care for her and be there in case she went to labor.  SNM went UA on 12 Oct 01 and returned 23 Oct 01.  The command again allowed Private W_ to stand restriction at home.  When the child was born he was not required to check in with the OOD while his wife was at the hospital.  Even though we have been very liberal due to his wife and child, this Marine continues to not follow the relaxed restriction requirements.  After three violations we, the command, moved Private W_ into barracks on 26 Nov 01 and he was ordered to stand restriction like all other Marines.  We have provided Mrs. W_ with the OOD’s phone number as well as the company office and duty NCO.  She can call and make arrangements to have him come escorted by a SNCO to make commissary runs and doctors appointments.  The command has been the only one thinking about the family, Private W_ has yet to consider how his actions will affect his family.” 

011211:	SJA review determined the case sufficient in law and fact.

011218:	GCMCA [CG, 1^st FSSG] 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 20011221 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:  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the Applicant’s enlistment.  While he may feel that his family situation was a contributing factor, it does not mitigate the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrating he was unsuitable for further service.  His service record is marred by award of non-judicial punishment (NJP) on five separate occasions.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, falls short of that required for a general (under honorable) characterization of service.  Relief denied.

The Board has no authority to upgrade a discharge for the sole purpose of enhancing enlistment opportunities as requested in the issue.  However, neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment.  A request for waiver is normally done during the processing of a formal application for enlistment through a recruiter.  

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.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  Evidence of continuing educational pursuits, a positive employment record, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.   

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 additional documentation to support any claims of post-service accomplishments or any other evidence relating 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.  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.

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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