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Last saved by: joyce.meeks
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Docket No. MD05-00878

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

FOR OFFICIAL USE ONLY

 ex-PVT, USMC
Docket No. MD05-00878

 Applicant’s Request

The application for discharge review was received on 20050419.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  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 20050819.  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:

“When I was discharged back in May of 1998.  I was told that in 6 months the discharge would be changed to honorable.  I never received any paper.  In summer of 1999 I talked with a Vet rep. In Benton, IL. he said everything was straight, & I would receive papers in the mail by 2000.  I still haven’t got them & really need to straighten this out.

Thanks for your help
[signed] J_ D. B_ ( Applicant)”

Documentation

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

No additional documentation was provided by the Applicant.

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		951025 - 960819	COG

Period of Service Under Review:

Date of Enlistment:  960820		Date of Discharge:  980514

Length of Service (years, months, days):

	Active:    01 08  24 (Doesn’t exclude lost time.)
	Inactive:  None

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

Education Level:  12			AFQT:  58

Highest Rank:  PFC			MOS:  3521

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (3)			Conduct:  4.1 (3)

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  14

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:

970527:	Unauthorized absence from 1130, 970527.

970603:	Surrendered from unauthorized absence at 1400, 970603.

970606:	Counseled for deficiencies in performance and conduct [Violation of Marine Corps regulations by your unauthorized absence from your unit 1130, 970527 to 1400, 970603].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
	Applicant chose not to make a statement.

971028:	Counseled for deficiencies in performance and conduct  [Consistently being in an unauthorized absence status].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

971217:	NJP for violation of UCMJ, Article 86:
Specification:  Did, on or about 0615, 971121, absent himself from his appointed place of duty, to wit:  Company Formation, FC574, Camp Lejuene, NC, and did remain so absent until on or about 0630, 971121.
Awarded restriction and extra duties for 14 days.  Not appealed.

980106:	Acknowledged understanding of eligibility but not recommended for promotion to LCpl, due to NJP for month of Jan, Feb & March.
Applicant chose not to make a statement.

980203:	NJP for violation of UCMJ, Article 86:
Specification:  Did, on or about 1800, 971231, without authority, absent himself from his appointed place of duty, to wit: Company EPD, at FC574, Camp Lejuene, NC.  
Violation of UCMJ, Article 86:
Specification:  Did, on or about 1800, 980102, without authority absent himself from his appointed place of duty, to wit: Company EPD, at FC574, Camp Lejuene, NC.
Violation of UCMJ, Article 86:
Specification:  Did, on or about 1800, 980103, without authority absent himself from his appointed place of duty, to wit: Company EPD, at FC574, Camp Lejuene, NC.
Awarded forfeiture of $238.00 pay per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

980319:	NJP for violation of UCMJ, Article 115:
Specification:  Did, on or about 980228, for the purpose of getting a half day off, while on a light duty status, participate in a five kilometer run/walk.
Awarded forfeiture of $242.00 pay per month for 1 month, restriction and extra duties for 14 days.

980326:	Applicant appealed NJP of 980319.
980401:	Awarded forfeiture of $242.00 pay per month for 1month (suspended for 6 months), no further relief granted.

980422:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct, based on past record of misconduct, i.e, Company NJP on 971217 for being UA from his appointed place of duty; Company NJP on 980203 for three charges of Article 86; Company NJP on 980319 for participating in a five kilometer run while on light duty, for the purpose of getting a half day off.

980424:	Applicant advised of rights and having consulted with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

980424:	Commanding Officer, 8^th Engineer Support Battalion, 2d Force Service Support Group, recommended to Commanding General, 2d Force Service Support Group, that the Applicant be discharged under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  The factual basis for this recommendation was PFC B_ (Applicant)’s past record of misconduct, i.e, Company NJP on 971217 for being UA from his appointed place of duty; Company NJP on 980203 for three charges of Article 86; Company NJP on 980319 for participating in a five kilometer run while on light duty, for the purpose of getting a half day off.  Commanding Officer’s comments: (verbatim):  PFC B_ (Applicant) has been counseled numerous times, both formally and informally, and continues to show no desire or motivation to be a productive Marine.  He is lackadaisical in his work and his performance continues to decline.  He was given a break while at Motor Transport School by not receiving NJP for an eight day UA, but within four months of checking into this command he received NJP for UA.  Within the next four months, he received two NJP’s for UA violations.  As of 21 April 1998, PFC B_ (Applicant) is pending Battalion NJP for Violation of Articles 86 and 92, unauthorized absence and violation of a lawful general order.  Counseling sessions seem to have no effect on this Marine and he seems determined to give up on the Maine Corps.  Based upon enclosures (2) through (4) it is my opinion that a discharge under other than honorable conditions is warranted.  Retention of the respondent would adversely affect the morale, discipline, and military effectiveness of this organization.  PFC B_ (Applicant) shows me no desire to finish his enlistment with honor and he is therefore recommended for an other than honorable conditions discharge.

980429:	NJP for violation of UCMJ, Article 86:
Specification:  Did, on or about 1130, 980413, absent himself from his appointed place of duty, to wit:  FC574, located at Camp Lejuene, NC, and did remain so absent until on or about 1320, 980414.
Violation of UCMJ, Article 92:
Specification:  Did, on or about 980409 and 980414, violate a lawful general order, to wit: BO 1050.4T, by going out of bounds during ninety-six hour liberty.
Awarded forfeiture of $463.00 pay per month for 2 months (suspended for 6 months) and reduction to E-1.  Not appealed.

980430:	SJA review determined the case sufficient in law and fact.

980506:	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 19980514 under other than honorable conditions for misconduct due to a pattern of misconduct (A and B).   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 (C and D).

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 2 retention warnings and 4 nonjudicial punishment proceedings for violations of Articles 86 (5 specs totaling 14 days UA), 92, and 115 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 Applicant states that he was told that after six months he could have his discharge upgraded.  There is no law or regulation that authorizes a discharge to be automatically upgraded after six months.  A former service member has 15 years, from the date of discharge, to petition the Board for consideration of an upgrade.  The Board does not automatically upgrade a discharge after six months.  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 documentation to support any claims of post-service accomplishments or any other evidence related to his discharge 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 92, violation, failure to obey general order.

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

D.  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.