Author: CAP
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Docket No. MD05-00235

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

ex-PFC, USMC
Docket No. MD05-00235

Applicant’s Request

The application for discharge review was received on 20041117.  The Applicant requested the characterization of service received at the time of discharge be changed to Uncharacterized and the reason for the discharge be changed to “Entry Level Separation.”  The Applicant requests a documentary record review.  The Applicant did not list a representative on her DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050118.  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 and the reason for 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 discharge was inequitable because it was based on one issue in10th month of 2002.  I did not have any previous problems.  I was 9 months pregnant and I feel I was not given a fair chance.  The other Marine didn’t get as much as a deduction of pay grade.  Also the 1^st Sergeant of my company was charged.  And the new 1^st sergeant got to make the decision of weather to discharge me.  By me being a well acting Marine before my pregnancy.  I think I should be accepted back on those terms.  I really want to come back.  I didn’t want to cause any problems.  My one incident was my fault and if the Marine Corps would accept me back, I will be forever grateful.”

Documentation

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

Applicant’s DD Form 214
Tuition Bill from Delgado Community College
Criminal Records Check, dtd 11/12/04

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR (J)		000912 - 010624	COG

Period of Service Under Review:

Date of Enlistment:  010625		Date of Discharge:  030131

Length of Service (years, months, days):

	Active:    01  07  06 (Accounts for lost time.)
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  39

Highest Rank:  LCpl			MOS:  1141 (Electrician)

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  NMF*			Conduct:  NMF*

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  (1) 20020910 – 20020911

* No marks found in Applicant’s service record. 

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:

020913:	NJP for violation of UCMJ, Article 86:  On 10 Sep 2002 at 0700 was UA and stayed that way until 0700 on 11 Sep 2002.
Violation of UCMJ, Article 92:  … willfully disobeyed a lawful order given by MGySgt …  
Awarded forfeiture of $304.00 per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

020913:	Counseled for deficiencies in performance and conduct.  [Repeated incidents of UA and disobedience.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

021025:	NJP for violation of UCMJ, Article 90:  … willfully disobey an order given by her commanding officer …
Violation of UCMJ, Article 128:  … struck her roommate …  
Awd red to PFC/E-2, forfeiture of $619.00 per month for 2 months, and 45 days restriction and extra duties.  Forfeiture of $619.00 per month for 1 month, and 45 days extra duties susp for 6 mos.  Not appealed.

021025:	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 a “derogatory page 11 entry, and Company Level NJP held on 020912, Battalion NJP held on 021025.”

021025:	Applicant advised of her 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.

030108:	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 a “derogatory page 11 entry, and Company Level NJP held on 020912, Battalion NJP held on 021025.”

030110:	SJA review determined the case sufficient in law and fact.

030113:	GCMCA [Commanding General, 2d Force Service Support Group] 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 20030131 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).

Issue 1:  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.  The record does not support the Applicant’s contention that her discharge was based on “one issue.”  The Applicant’s service record is marred by a negative page eleven counseling entry and the awarding of nonjudicial punishment (NJP) on two separate occasions for unauthorized absence, assault, and disobedience of orders, demonstrating she was unsuitable for further service.  A service characterization of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a member of the United States Marine Corps.  The record is devoid of any evidence the Applicant was not responsible for her conduct or that she should not be held accountable for her actions.  The Applicant’s summary of service clearly reflects her disobedience of the orders and directives regulating good order and discipline in the naval service. A change in discharge characterization or a change in the narrative reason for separation would be inappropriate.  Relief denied.

Regarding the Applicant’s request to change the narrative reason for discharge to uncharacterized or entry level separation, by regulation, only members discharged within the first 180 days of their first enlistment can be given this kind of discharge.  Since the Applicant served in excess of a year, she cannot be given an uncharacterized or entry-level separation.  The summary of service clearly documents that misconduct due to pattern of misconduct was the reason the Applicant was discharged.  No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged.  Relief denied.

The NDRB has no authority to 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 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.  

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 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, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.   At this time, the Applicant has not provided sufficient documentation of good character and conduct to mitigate her misconduct while on active duty.  Relief denied.
 
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 P1900.16F), effective 01 Sep 2001 until Present. 

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 90, willfully disobeying superior commissioned officer; Article 92, Failure to obey an order; Article 128, Assault.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		Secretary of the Navy Council of Review 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.