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Last saved by: shirley.robertson
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Docket No. MD04-00941

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

ex-PVT, USMC
Docket No. MD04-00941

Applicant’s Request

The application for discharge review was received on 20040518.  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 discharge 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.

The NDRB did note administrative error(s) on the original DD Form 214.  Block 24, Character of Service, should read:  "UNDER OTHER THAN HONORABLE CONDITIONS" vice "OTHER THAN HONORABLE."  The Commandant, Headquarters USMC, Quantico, VA, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I was discharged other than honorably for misconduct.  I have been out of the military for three years.  I have held a solid job all that time.  I have also lived on my own for the last year and a half.  Due to the situation in Iraq, and other reasons, I want to reenter active service in the Marine Corps.  I feel I was unfairly discharged for something very minor.  I also would like my reenlistment code upgraded.”

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Active:    None
	Inactive: USMCR(J)			981219 - 990822	COG

Period of Service Under Review:

Date of Enlistment:  990823		Date of Discharge:  001229

Length of Service (years, months, days):

	Active:    01  04  07
	Inactive:  None

Age at Entry: 17(Parental Consent)	Years Contracted:  4 

Education Level:  12			AFQT:  43

Highest Rank:  LCpl			MOS:  0311

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.7 (1)			Conduct:  3.3 (1) 

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Marksman Badge

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. 6210.2.

Chronological Listing of Significant Service Events:

000224:	Counseled for deficiencies in performance and conduct.  [Your reported adjustment disorder as indicated by a medical officer diagnosis of 000215.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000608:	Counseled for deficiencies in performance and conduct.  [Misconduct for drinking underage.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000608:	NJP for violation of UCMJ, Article 92: Failure to obey order or regulation on or about 000603, drank underage.
	Award:  Forfeiture of $563.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  Not appealed.

001020:	Medical evaluation by a military psychologist concluded that the Applicant is not considered to be mentally ill, but manifests a long standing disorder of character and behavior, which is of such severity as to render him unsuitable for continued military service.  He does not presently require and will not benefit from hospitalization.   Short-term psychiatric treatment for this condition is of limited benefit and long-term treatment is not available within the military.  Although not currently considered suicidal or homicidal, this member is judged to represent a risk to self and others if retained on active duty, especially in view of his past suicide gesture and recent suicidal ideation along with self-mutilating behavior.  He has had poor adjustment to the demands of the military service despite appropriate leadership, counseling, or other appropriate methods.  Further counseling is not recommended as this will not change his future maladaptive behavior and will only increase the likelihood of this service member to act out on his suicidal ideation.  He is deemed fit for return to duty for immediate processing for administrative separation.

	AXIS I: 305.1 Nicotine Dependence
	AXIS II: 301.83 Borderline Personality Disorder
AXIS III: None
AXIS IV: Current stresses: Lack of support system, financial, and dissatisfaction with the USMC
AXIS V: Current GAF: 62 

001108:	Counseled for deficiencies in performance and conduct.  [Misconduct for your insubordinate conduct towards an NCO on 000929, wrongful appropriation to LCpl T_ on 001015 and 001026, and issuing a verbal threat to LCpl W_ on 000915 and 001012.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

001110:	NJP for violation of UCMJ, Article 91: Displayed insubordinate conduct/speech towards an NCO during a company function by throwing a spear at a target and saying “I wish it was my NCO’s up there,” violation of UCMJ, Article 121: Wrongful appropriation on two separate occasions by using another Marine’s vehicle without permission between 001015 and 001026, violation of UCMJ, Article 134: Issuing a verbal threat to another Marine by saying “You’ll be lucky if I don’t have any rounds left because I’ll shoot you.”
	Award:  Forfeiture of $502.00 pay per month for 1 month (suspended for 6 months), restriction for 60 days, reduction to E-1.  Not appealed.

001116:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions and convenience of the government due to a personality disorder.

001116:  	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

001117:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.  The factual basis for this recommendation was his numerous violations of the UCMJ, to include failure to obey an order or regulation, insubordinate conduct towards an NCO, wrongful appropriation, issued a verbal threat to another Marine, and being diagnosed with a borderline personality disorder, as supported by his three page 11 counseling entries, two NJP’s and his mental health evaluation of 001020.  

001120:	SACC evaluation report indicates applicant was referred for evaluation, as a result of that evaluation, the diagnostic impression is: No Diagnosis (V71.09), Applicant recommended for administrative separation.

001206:	SJA review determined the case sufficient in law and fact.

010320:	GCMCA [Commander, Marine Corps Base Hawaii] 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 20001229 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.  When the service of a member of the U.S. Marine Corps has been honest and faithful, it is appropriate to characterize that service as honorable.  An Under Other Than Honorable Conditions discharge 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 two nonjudicial punishment proceedings for five violations of Articles 91, 121 and 134 of the UCMJ.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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 naval service.  The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided any documentation for the Board to consider.  Relief denied.

Since the NDRB has no juridcistion over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to  change a reenlistment code.  Reenlistment policy of the Marine Corps is promulgated by the Commandant, United States Marine Corps, Code MMEA, 3280 Russell Road, Quantico, VA 22134.  Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment.  A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of 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 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 91, insubordinate conduct.

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.