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Docket No. MD04-01058

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

ex-Pvt, USMC
Docket No. MD04-01058

Applicant’s Request

The application for discharge review was received on 20040616.  The Applicant requested the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a personal appearance discharge review before a traveling panel closest to New Orleans, LA.  The Applicant listed the American Legion as his representative on the DD Form 293.  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 the Applicant the Board first conducts a documentary review prior to any personal appearance hearing.

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. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I am entitled to an upgrade of my discharge status because, under the circumstances of my services, the other honorable discharge was harsh.  I tried to be a good Marine and do acknowledge that I made a mistake, but, my punishment is disportionate to my offense.

I would like to attempt to get back into some branch of the military, but, cannot do so unless my discharge is upgraded.”

Additional issues submitted by Applicant’s counsel/representative (AMERICAN LEGION):

2.  “Equity Issue:  Based on our review of evidentiary record and on behalf of this former member, we request that the Board consider provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application. 
_______________________________________________________________________

In accordance with 32 C.F.R., section 724.166 and SECNAVINST 5420.174C, enclosure (1), paragraph 1.16, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue and following statement in supplement to this Applicant’s petition. 

Review of the service record reveals that this former member was awarded NJP on 000209 for VUCMJ, Art. 86;  convicted by SPCM on 000424 for VUCMJ, Art. 112a and awarded NJP on 000629 for VUCMJ, Art. 86.  Following due process notifications, he was discharged Under Other Than Honorable Conditions due to pattern of misconduct as authorized by MARCORSEPMAN, Par. 6210.3.

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because it is too harsh in light of his overall service record.  He has not submitted any additional documentation for consideration.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised.  To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 U.S.C., section 1553, and set forth in 32 C.F.R., part 724 and SECNAVINST 5420.174C, enclosure (1).

This case is now respectfully submitted for deliberation and disposition.”

Documentation

The Applicant did not submit additional documentation for consideration by the Board.

PART II - SUMMARY OF SERVICE

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

	Active:    None
	Inactive: USMCR (J)		990429 - 990510	COG

Period of Service Under Review:

Date of Enlistment:  990511		Date of Discharge:  000824

Length of Service (years, months, days):

	Active:    01  02  20 (Accounts for lost time.)
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  30

Highest Rank:  PFC			MOS:  3531, Motor Vehicle Operator

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  2.9 (5)			Conduct:  2.5 (5)

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:

990429:	Initial enlistment contract documents admission of pre-service marijuana experimentation.  Enlistment waiver was granted. Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

000209:	NJP for violation of UCMJ, Article 86:  … willfully absent himself from his appointed place of duty.
Awarded forfeiture of $263.00 per month for 1 month, and 14 days restriction and extra duties.  Not appealed.

000210:	Counseled for deficiencies in performance and conduct.  [Unauthorized Absence.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000424:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 112a:
	Specification:  … wrongfully used marijuana.
	Findings:  to Charge I and specification 1 thereunder, guilty.  
Sentence:  Fine of $300.00 per month for 3 months, Conf for 30 days, hard labor w/o conf for 30 days, reduction to E-1.

000425:	Counseled for deficiencies in performance and conduct.  [Wrongful use of marijuana.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000622:	NJP for violation of UCMJ, Article 86:  UA … from appointed place of duty.
Awarded forfeiture of $502.00 per month for 1 month, and 60 days restriction and extra duties.  Not appealed.

000706:	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 the Applicant’s “two properly prepared 6105 entries, two NJP’s, and one Special Court Martial.”

000706:	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.

000706:	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 the Applicant’s “two properly prepared 6105 entries, two NJP’s, and one Special Court Martial.” 

000726:	SJA review determined the case sufficient in law and fact.

000815:	GCMCA [Commander, 1^st Marine Division] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

000815:	Applicant Barred from Camp Pendleton, CA.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20000824 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 & 2:  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the Applicant’s enlistment.  While he may feel he “tried to be a good Marine,” it does not mitigate the Applicant’s disobedience of the orders and directives regulating good order and discipline in the naval service, while demonstrating he was unsuitable for further service.  The Applicant’s service record is marred by eight negative page eleven counseling entries, the awarding of nonjudicial punishment (NJP) on two separate occasions for unauthorized absence and a Special Court-Martial for illegal drug abuse; thereby, substantiating his misconduct.  It must be noted most Marines serve honorably and faithfully in order to earn their honorable discharges.  In fairness to those Marines, commanders and separation authorities are tasked to ensure the undeserving receive no higher a characterization than is due.  An upgrade to general under honorable conditions would be inappropriate.  Relief denied.  For the Applicant’s edification, Marines found guilty of illegal drug use normally receive a discharge characterization of under other than honorable conditions. 

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.  This issue does not serve to provide a foundation upon which the Board can grant relief.

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.  The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  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 112a, wrongful use of controlled substances.

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.