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Docket No. MD04-00571

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

ex-Pvt, USMC
Docket No. MD04-00571

Applicant’s Request

The application for discharge review was received on 20040224.  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 personal appearance before a traveling panel closest to Nashville, TN.  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.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041001.  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.  “My overall service was not given due consideration”  

2.  “Nature of seperation to harsh for offenses committed.”

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: USMCR(J)		990331 - 990425	COG

Period of Service Under Review:

Date of Enlistment:  990426		Date of Discharge:  001023

Length of Service (years, months, days):

	Active:    01  05  28
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  40

Highest Rank:  PFC			MOS:  1833

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.9 (4)			Conduct:  3.2 (4)

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:

000602:	Counseled for deficiencies in performance and conduct.  [Dereliction of duty.  On 000530 you were caught sleeping during ISMT training.  On 000505 you received a special counseling by Lt. D_ for sleeping on an AAV during working hours.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000606:	NJP for violation of UCMJ, Article 134: On 000531 wrongfully communicated a threat to PFC D_, LCpl V_, LCpl C_, and LCpl F_, by threatening to kill them with rounds issued at the Rifle Range.
Awarded forfeiture of $254.00, restriction and extra duties for 14 days (6 days restriction and extra duties suspended for 6 months).  Not appealed.

000609:	Counseled for deficiencies in performance and conduct.  [Communicating a threat.  On 000531 you communicated intentions to shoot several members of your platoon.  You were subsequently removed from the rifle range detail.  Your actions demonstrated extremely poor judgment and disregard for previous counselings on the issue of showing respect to fellow Marines.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000825:	NJP for violation of UCMJ, Article 91 (2 specs):
Specification 1: Disrespectful to SSgt I_ on 000731.
Specification 2: Fail to obey a lawful order from Sgt K_ not to go to chow on his own on 000731.
Violation of UCMJ, Article 134: On 000816 intentionally injure himself by cutting his wrists.
Awarded forfeiture of $500.00 per month for 2 months, restriction for 60 days, reduction to Pvt.  Not appealed.

000825:	Counseled for deficiencies in performance and conduct.  [Pattern of misconduct.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
		
000825:	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 your general lack of discipline and maturity, poor attitude, non-judicial punishments, failure to obey lawful orders, and your unresponsiveness to continuous counseling and leadership.

000825:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights. 

000825:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

000914:	SJA review determined the case sufficient in law and fact.

001010:	GCMCA [CG, III MEF] 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 20001023 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).

Issues 1 and 2.  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 two 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, and falls short of that required for an honorable or under honorable (general) characterization of 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 inequity or impropriety must have existed during the period of enlistment in question.  No such inequity or impropriety 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 91, disrespect to a SNCO, and Article 134, communicate a threat.

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.