Author: CAP
Last saved by: shirley.robertson
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Docket No. MD04-00793

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

ex-Pvt, USMC
Docket No. MD04-00793

Applicant’s Request

The application for discharge review was received on 20040414.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions or uncharacterized.  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 20041022.  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.  “To whom it may concern:

On November 11th, 1997 I was discharged from the USMC with an Other Than Honorable Discharge.  I would like to have my case reviewed and my discharge to be upgraded.  I feel that an OTH was a harsh discharge and was not warranted for the minor disciplinary infractions
In 1997 I joined the USMC with high hopes, I did extremely well in boot camp and came to love the Marine Corps like the family I never had.  In May of 1997 1 suffered an injury while at Marine Combat Training at Camp Geiger and was held back in training.  For months I sat at MAT Co. and did nothing, I was forced to remain on base because of my injury and was sent on daily working parties (chipping paint, painting buildings, etc).  At that time I was not allowed to leave the base or have liberty.  On June 27th 1997 I went UA for 1 day.  I did not report to my working party, for the day of paint chipping.  I again went UA from Jul 1 to Jul 19; I went home for a much-needed break, while it was wrong of me to go, I had petitioned for leave and was denied twice before I left.  I felt like I was being punished for being injured.  While this was definitely the wrong action to take it made me realize what the USMC had done for me.  I was more dedicated than ever to serving my country.
I come from a broken family and enlisted straight out of high school (I actually graduated early so I could go to boot camp sooner).  I maintained a 3.81 GPA through high school and have since married and have 3 children.  My husband is an active duty service member with the US Navy.  I was 18 at the time and did not fully comprehend what I was getting myself into.
I am currently finishing my bachelor’s degree in Legal studies with the University of Maryland, I would like to reenlist in the service and become a JAG officer.  I am asking that the board take into consideration the youthful indiscretions and poor choices a young woman made years ago and upgrade my reenlist code from RE-4 to something that would make it possible for me to reenlist in the Navy.  I know what I did years ago was wrong, but the way the MAT Co.  At Camp Geiger was ran was deplorable.  I lived with service members who were waiting to be processed out to due to Psych evals, and people who had failed the mandatory drug tests.
I am a good person and would love to serve my country the way I should have the first time.  I am asking for a second chance to right a wrong that I created years ago.  I appreciate you taking the time to consider my request.”

Documentation

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

Copy of DD Form 214
Letter from Applicant 
College transcripts (2 pp.)
Letter from C. S_ L_
Letter from S_ M_

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		961123 - 970218	COG

Period of Service Under Review:

Date of Enlistment:  970219		Date of Discharge:  971105

Length of Service (years, months, days):

	Active:    00  08  18
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  56

Highest Rank:  Pvt			MOS:  9900

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.1 (2)			Conduct:  3.1 (2)

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  41

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:

970627:	NJP for violation of UCMJ, Article 86: UA from 1800, 970615 to 1700, 970616.
Awarded forfeiture of $210.00, restriction and extra duties for 14 days (forfeiture of $95.00 and 7 days restriction and extra duties suspended for 6 months).  Not appealed.

970627:	Counseled for deficiencies in performance and conduct.  [NJP for UA.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970807:	NJP for violation of UCMJ, Article 86 (2 Specs.): UA from 2130, 970630 to 1300, 970720; and from 0001, 970802 to 1700, 970806.
Awarded forfeiture of $450.00 per month for 2 months, restriction for 60 days.  Not appealed.

970808:	Counseled for deficiencies in performance and conduct.  [BN NJP for UA.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970813:	Mental health evaluation.  Psychologist strongly recommended administrative separation.  Not suited for military service.  Continuing risk of harm to herself.  Utterly not motivated for continued service.

		Axis I:   Occupational problem, V61.1
			  Alcohol abuse, 305.0
		Axis II:  Personality disorder NOS, with antisocial features, 301.9
		Axis III: Complains of headaches and ankle pain

970911:	NJP for violation of UCMJ, Article 86 (2 specs): UA from 2215-2345, 970812; and from 0700, 970820 to 2145, 970905; violation of UCMJ, Article 134: Make and utter to MWR nine checks in the total of $332.74 and fail to maintain sufficient funds for payment of said checks.
Awarded forfeiture of $450.00 per month for 2 months (suspended for 6 months), restriction and extra duties for 45 days.  Not appealed.

970912:	Counseled for deficiencies in performance and conduct.  [BN NJP for UA and making and uttering nine checks to MWR without sufficient funds.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970929:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions as evidenced by three nonjudicial punishments.

970929:  	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.

971006:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.  

971008:	Counseled for deficiencies in performance and conduct.  [Lack of reasonable effort, failure to accept responsibility, lack of accountability, lack of attention to detail, and overall poor performance.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

971031:	GCMCA [Commander, MCB, CLNC] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19971105 under other than honorable conditions 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.  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 three occasions.  The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her 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 her conduct or that she should not be held accountable for her actions.  An upgrade is inappropriate.  Relief denied.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  

The Applicant’s discharge characterization accurately reflects her service to her country.   The Applicant’s length of service precludes consideration for an uncharacterized discharge.  Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question.  No such inequity or impropriety occurred 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.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and evidence of a substance free lifestyle, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct.  The Applicant’s evidence of post-service conduct was found not to mitigate her misconduct sufficient to warrant an upgrade to her discharge.  

The Applicant is reminded that she remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of her discharge.  Representation at a personal appearance hearing is recommended but not required.  Relief denied.

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 2001. 

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; and Article 134, failure to maintain sufficient funds.

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.