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Docket No. MD04-00217

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

ex-PVT, USMC
Docket No. MD04-00217

Applicant’s Request

The application for discharge review was received on 20031117.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable or 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 20040720.  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

No issues were submitted by the Applicant.

Documentation

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

Applicant’s DD Form 214
Certificate of completion, dated June 23, 2000
Certificate of completion, dated October 28, 2002

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR (J)			980130 - 980201	COG

Period of Service Under Review:

Date of Enlistment:  980202		Date of Discharge:  000807

Length of Service (years, months, days):

	Active:    02  06  06
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  23

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.7 (8)			Conduct:  3.3 (8)

Military Decorations:  None

Unit/Campaign/Service Awards:  None

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. 6210.3.

Chronological Listing of Significant Service Events:

980903:	Counseled for deficiencies in performance and conduct.  [Uttering worthless checks to MWR.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

981218:	NJP for violation of UCMJ, Article 86:
Specification: Unauthorized absence 0600-1545, 981209.
Violation of UCMJ, Article 92:
Specification: Failed to obey a lawful order.
Awarded forfeiture of $242.00 per month for 1 month, restriction and extra duties for 14 days.  Forfeiture suspended for 6 months.  Not appealed.

990813:	NJP for violation of UCMJ, Article 92:
Specification: Failure to obey a lawful written order, to wit: a military protection order, issued by Captain, by meeting his wife in BB-265 parking lot, which was a specific violation of the protection order on 1800, 990802.
Awarded forfeiture of $260.00 per month for 1 month, restriction and extra duties for 14 days.  Forfeiture and restriction suspended for 3 months.  Not appealed.

990927:	Counseled for deficiencies in performance and conduct.  [NJP received on 990813 for violation of Article 92.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

991028:	NJP for violation of UCMJ, Article 91:
Specification: Insubordinate conduct toward a Staff NCO, by willfully disobeying a direct order when told to go to Allstate Insurance to give his section leader an address and phone number of the agent he dealt with on 1100, 991013.
Violation of UCMJ, Article 107:
Specification: False official statement, informing his section leader that he paid half his vehicle insurance premium on 1100, 991007.
Awarded correctional custody for 30 days, reduction to PFC.  Not appealed.

991213:	NJP for violation of UCMJ, Article 134:
Specification: Unlawfully enter the secretary of Private B_ on 1030, 991206.
Awarded forfeiture of $251.00 per month for 1 month, restriction and extra duties for 14 days.  Forfeiture suspended for 6 months.  Not appealed.

000120:	Counseled for deficiencies in performance and conduct.  [Uttering worthless checks to Piggly Wiggly totaling $502.00.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000413:	NJP for violation of UCMJ, Article 91:
Specification: Insubordinate conduct towards a staff noncommissioned officer, in that PFC having received a lawful order from SSgt to prepare his government housing quarters for it’s final inspection on 0730, 000403, willfully disobeyed the lawful order.
Violation of UCMJ, Article 107:
Specification: False official statement on 0730, 000403, to wit: that SSgt authorized him to work on his POV instead of preparing his quarters for final inspection.
Awarded forfeiture of $502.00 per month for 2 months, restriction and extra duties for 45 days, reduction to Pvt.  Not appealed.

000515:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

000515:	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.

000516:	Vacate suspended forfeiture awarded at NJP dated 991213.

000606:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  The factual basis for this recommendation was your numerous counseling entries, three Company level nonjudicial punishments for violations of Articles 86, unauthorized absence, 92, failure to obey a lawful written order, and Article 134, unlawful entry, and two Battalion level nonjudicial punishments for violations of Articles 91, insubordinate conduct towards a staff noncommissioned officer and 107, false official statements, and your failed treatment for Level III domestic violence. 

000731:	SJA review determined the case sufficient in law and fact.

000731:	GCMCA [Commanding 2d Marine Division, II Marine Expeditionary Force, Camp Lejeune, NC] 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 20000807 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 five 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, and falls short of that required for an honorable or under honorable characterization of service.  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 P1900.16E), effective 31 Jan 97 until 31 Aug 01. 

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 107, false official statement; and Article 134, unlawful entering.

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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