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

 ex-LCpl, USMC
Docket No. MD03-01238

Applicant’s Request

The application for discharge review was received on 20030715.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance discharge review before a traveling panel closet to Nashville, TN.  The Applicant listed the American Legion as the representative on the DD Form 293.  In the acknowledgement letter, the applicant was informed that the Naval Discharge review Board (NDRB) does not travel; all hearings are held in the Washington, D. C. area.  The NDRB also advised that the Board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040430.  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 HONORABLE CONDITIONS (GENERAL)/Misconduct – Misconduct – Minor disciplinary infractions (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.2.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “At the time of discharge, I was having mental problems, diagnosed as personality disorder.  This was the reason for discharge.  This is a medical problem, not a misconduct problem.  I believe I should have received an Honorable Discharge, probably due to medical reasons.”

Additional issues submitted by Applicant’s counsel/representative (AMERICAN LEGION):

2.  “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:

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: None

Period of Service Under Review:

Date of Enlistment:  911029		Date of Discharge:  931115

Length of Service (years, months, days):

	Active:  02  00  17
	Inactive:  None

Age at Entry:  20			Years Contracted:  6

Education Level:  12			AFQT:  53

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (6)		Conduct:  4.3 (6)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM 

Days of Unauthorized Absence:  None 

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct – Minor disciplinary infractions (administrative discharge board required but waived), authority:  MARCORSEPMAN Par. 6210.2.

Chronological Listing of Significant Service Events:

920220:	Counseled for deficiencies in performance and conduct.  [Substandard physical performance.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

930728:	Counseled for deficiencies in performance and conduct.  [Poor daily personal appearance, poor performance of regular duties, and marginal conduct.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

930730:	Counseled for deficiencies in performance and conduct.  [Personality disorder.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

930803:	Counseled for deficiencies in performance and conduct.  [Failure of CO’s wall locker and JOB inspection on 930729.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

930901:	NJP for violation of UCMJ, Article 92: Failed to obey order of GySgt L_to file all closed EROs in the appropriate vehicle record jackets by COB on 930818.
	Award:  Forfeiture of $200.00, restriction and extra duty for 14 days (extra duty suspended for 6 months).  Not appealed.

930901:	Letter from CO to CMC replying to congressional correspondence concerning Applicant.

930914:	Applicant notified of intended recommendation for discharge under honorable conditions (general) by reason of misconduct due to minor disciplinary infractions as evidenced by four page 11 counseling entries and one non-judicial punishment.

930914:  	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.

930914:	Commanding Officer recommended discharge under honorable conditions (general) by reason of misconduct due to minor disciplinary infractions.  The factual basis for this recommendation was four page 11 counseling entries and one non-judicial punishment.

931027:	SJA review determined the case sufficient in law and fact.

931109:	GCMCA [Base Commander, MCB CAMPEN, CA] directed the Applicant's discharge under honorable conditions (general) by reason of misconduct due to minor disciplinary infractions.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19931115 under honorable conditions (general) 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).

Issue 1.  Administrative separation for misconduct takes precedence over separation for other reasons.  A characterization of service of under honorable conditions (general) 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 award of nonjudicial punishment (NJP) on one occasion and adverse counseling entries on other occasions.  No narrative reason other than minor disciplinary actions more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation. 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 characterization of service.  Relief denied.

Issue 2.  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, 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 P1900.16D), effective 27 Jun 89 until 17 Aug 95. 

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.

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