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Docket No. MD03-01298

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

 ex-Pvt, USMC
Docket No. MD03-01298

Applicant’s Request

The application for discharge review was received on 20030723.  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 20040514.  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 – Pattern of misconduct (administrative discharge board required but waived), 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:

Letter from Applicant

PART II - SUMMARY OF SERVICE

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

	Active:    None
	Inactive: USMCR(J)		900823 - 901008	COG

Period of Service Under Review:

Date of Enlistment:  901009		Date of Discharge:  920325

Length of Service (years, months, days):

	Active:    01  05  17
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  12			AFQT:  36

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.6 (3)			Conduct:  3.8 (3)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  1

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Pattern of misconduct (administrative discharge board required but waived), authority:  MARCORSEPMAN Par. 6210.3.

Chronological Listing of Significant Service Events:

910730:	NJP for violation of UCMJ, Article 86 (3 specs):
Specification 1: UA from 0731 – 1452, 910628.
Specification 2: UA from 0550 – 1110, 910723.
Specification 3: UA from 910709 to 910710.
Violation of UCMJ, Article 121: Used GSA Fleet Management Card to appropriate $8.03 of gasoline.
Awarded forfeiture of $334.00, restriction and extra duties for 45 days, reduction to Pvt.  Not appealed.

910730:	Counseled for deficiencies in performance and conduct.  [Violations of UCMJ Articles 86 and 121.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

910910:	NJP for violation of UCMJ, Article  86: UA from 0945 – 1400, 910817.
Violation of UCMJ, Article 134 (4 specs):
Specification 1: Break restriction on 910817.
Specification 2: Dishonorable check for $50.00.
Specification 3: Dishonorable checks for a total of $100.00.
Specification 4: Dishonorable check for $100.00.
Violation of UCMJ, Article 92: Derelict in performance of duties by not delivering orders to TMO.
Awarded restriction and extra duties for 45 days (30 days suspended for 6 months).  Not appealed.

910913:	Counseled for deficiencies in performance and conduct.  [Violations of UCMJ Articles 86 and 134.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920110:	NJP for violation of UCMJ, Article 91 (3 specs):
Specification 1: Disrespectful to SSgt M_ on 911219.
Specification 2: Disobeyed lawful order of SSgt M_.
Specification 3: Disobeyed lawful order of SSgt C_.
Violation of UCMJ, Article 92: Violate BaseO 5101.3P by having an unauthorized person operate his vehicle on base.
Violation of UCMJ, Article 111: DUI at 0059, 911130 with BAC of 0.179%.
Awarded forfeiture of $392.00 per month for 2 months, restriction and extra duties for 45 days.  Appealed.  Appeal voluntarily withdrawn on 920122.

920110:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by three NJPs.

920110:	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.

920130:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  

920221:	SJA review determined the case sufficient in law and fact.

920224:	GCMCA [CG, MCB, CAMPEN, CA] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

920323:	NJP for violation of UCMJ, Article 121: Took missing government B&G pager charging unit.
Violation of UCMJ, Article 92:  Violate BaseO 5000.2H by having  unauthorized weapons in his BEQ room.
Awarded forfeiture of $363.00 per month for 2 months.  Not Appealed.  

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19920325 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).

The Applicant introduced no decisional issues for consideration by the Board.  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 four occasions 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.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  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 P1900.16D), 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 86, unauthorized absence; Article 91, disrespect to a SNCO; Article 92, disobey a lawful order; Article 111, drunk driving; Article 121, larceny; and Article 134, dishonorable debt.

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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