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Docket No. MD03-01183

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

 ex-PFC, USMC
Docket No. MD03-01183

Applicant’s Request

The application for discharge review was received on 20030628.  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.  My discharge was inequitable because it was base on one major incident in Okinawa, Japan.  I am employed through the International Laborers union Local 480, and would feel better about my service term and life if you would consider upgrading my discharge

Semper Fidelis”

Documentation

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

Certificate of Appreciation, Marine of the month 930915
Certificate of Appreciation, Marine of the month 930413
Letter of appreciation 921001

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		911115 - 911222	COG

Period of Service Under Review:

Date of Enlistment:  911223		Date of Discharge:  951115

Length of Service (years, months, days):

	Active:  03  10  23
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  37

Highest Rank:  Cpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (10)		Conduct:  3.6 (10)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, LoA (2), SSDR, MM, CoA 

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:

940216:	Counseled for deficiencies in performance and conduct.  [Counseled this date on being absent from your appointed place of duty and your failure to keep your seniors informed of your whereabouts.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940418:	NJP for violation of UCMJ, Article 86:  UA(AWOL) Fr 0530, 940404 to 0830, 940404 was absent fr appointed place of duty, to with; Motor Transport Section, HQBN, HQMC, ARLVA..
	Award:  Forfeiture of $150 per month for 2 month(s), restriction and extra duty for 20 days.  Forf of $150.00 pay per month, 10 das restr and 10 das extra duties, susp for a period of 6 mos.  Not appealed.

940912:	NJP imposed and suspended on 940418 vacated and ordered executed this date.

940913:	NJP for violation of UCMJ, Article 86:  UA (AWOL):  On or about 0600, 940829, Cpl S_ was absent from his appointed place of duty.
	Award:  Reduction to E-3.  Not appealed.

940920:	Counseled for deficiencies in performance and conduct.  [Counseled this date concerning your frequent involvement with military authorities that has result in two NJPs, one page 11 entry and numerous personal counsellings.  You have continually failed to maintain yourself according to the rules and regulations of the UCMJ.  You have demonstrated a lack of professionalism and responsibility in your conduct.] Necessary corrective actions explained and sources of assistance provided.

950531:	NJP for violation of UCMJ, Article 86:  UA(AWOL) fr 0415, 950505 to 0750, 950505.
	Award:  Forfeiture of $273 per month for 1 month(s), restriction and extra duty for 14 days.  Not appealed.

950601:	Counseled for deficiencies in performance and conduct.  [Counseled this date concerning deficiencies: unauthorized absence.  You demonstrated poor judgment and a total disregard for Marine Corps regulations by your actions.]   Necessary corrective actions explained and sources of assistance provided.

950811:	NJP for violation of UCMJ, Article 92:  In that SNM operated a POV without a license, at the intersection of of Melville Rd. and Patterson, at 2033 on 01 July 1995, violation of UCMJ Article 111: In that SNM operated a POV while under the influence of alcohol at the intersection of Melville Rd. and Patterson, at 2033, on July 1995., violation of UCMJ Article 134: In that SNM refused to cooperate with medical and law enforcement officials, at the intersection of Melville Rd. and Patterson , at 2033, on 01 July 1995..
	Award:  Forfeiture of $478 per month for 2 month(s), restriction and extra duty for 45 days, reduction to E-2.  Not appealed.

950828:	Counseled for deficiencies in performance and conduct.  [Counseled this date concerning your recent misconduct, specifically during restriction from the most recent NJP, being caught in Kinville, Okinawa without a AFID in my possession, and providing false information to the apprehending MP, that you belong to Truck Company when in fact you had already been joining to H&S Co..]   Necessary corrective actions explained and sources of assistance provided.

950921:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions as evidenced by recurring episodes of misconduct as evidenced by four nonjudicial punishments.

950921:  	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.

951027:	GCMCA [CG 3d MarDiv] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.**

** Administrative Separation Package incomplete.
PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19951115 under other than honorable conditions for misconduct due to minor disciplinary infractions (A and B). In the absence of a complete discharge package, the Board presumed regularity in the conduct of governmental affairs (C) and, after a thorough review of the records, supporting documents, facts, and circumstances unique to this case, found that the discharge was proper and equitable (D and E).

Issue 1.  The Applicant contends that his discharge was inequitable because it was based on one incident and he is therefore entitled to an upgrade.  When the service of a member of U.S. Marine Corps has been honest and faithful, it is appropriate to characterize that service as honorable.  An Under Other Than Honorable Conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by four Nonjudicial Punishment proceedings, to include multiple Article 86 infractions and infractions of the UCMJ, Articles 92, 111 and 134.  In addition, the Applicant was subject to four Page 11 counseling for deficiencies in performance and conduct.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

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. 

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 18 Aug 95until 30 Jan 97. 

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 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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