Author: CAP
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Docket No. MD06-00542

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

FOR OFFICIAL USE ONLY

ex-Pvt, USMC
Docket No. MD06-00542

Applicant’s Request

The application for discharge review was received on 20070208.  The Applicant requests the Discharge 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 designate a representative on the DD Form 293.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060103.  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 characterization of the discharge shall not change.  The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to a pattern of misconduct.

The NDRB did note an administrative error on the original DD Form 214.  Block 28, Narrative Reason for Separation, should read:  “MISCONDUCT.”  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

No issues were submitted by the Applicant.

Documentation

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

Applicant’s DD Form 214 (Service 2)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19930927 - 19940821	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19940822		Date of Discharge:  19971223

Length of Service (years, months, days):

Active:    03  04  02  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  17 (w/ parental consent) 

Years Contracted:  4 

Education Level:  12				AFQT:  32

Highest Rank:  LCpl				MOS:  3051

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (11) 		Conduct:  4.2 (11)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Meritorious Unit Commendation, National Defense Service Medal, Sea Service Deployment Ribbon, Certificate of Commendation, Rifle Expert Badge (3 Award)

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:

960521:	Counseling:  Advised of deficiencies in performance and conduct (Poor judgment demonstrated on 960410 for your failure to be at your appointed place of duty at the prescribed time.  Specifically, you were in the hands of Civilian Authorities for possession of an unlawful weapon, resulting in your unauthorized absence.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960725:	NJP for violation of UCMJ, Article 107: 
	Specification: In that SNM (Applicant), did, at MCRD, PISC, at or about June 1996 and/or July 1996, with intent to deceive, make Sgt G_ and WO1 S_, an official statement, to wit:  SNM had been going to community service work (3) times a week every week, which statement was totally false, and was then known by the said, LCPL F_ to be so false. 
Violation of UCMJ, Article 86: In that SNM, absent himself from his appointed place of duty at which he was required to be, to wit:  Beaufort Memorial Hospital, located at Beaufort, SC. 
	Award:  Forfeiture of $237.00 pay per month for 1 month, restriction and extra duty for 14 days.  Not appealed.

960917:	Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of Oct, Nov, Dec 96 Prom 1st Quarter because of NJP.  Applicant chose not to make a statement.

961120:	NJP for violation of UCMJ, Article 92:
	Specification:  In that SNM (Applicant), did, on or about 961111, at 0400, violate a written order, to wit:  MCO 1020.34F, in that he returned to base with an earring in his ear.  
Violation of UCMJ Article 86: 
Specification:  In that SNM, did, on or about 961114, at 0730, muster 30 minutes late for formation.
	Award:  Forfeiture of $490.00 pay per month for 1 month, restriction and extra duty for 45 days, reduction to E-2 (suspended for 6 months).  Not appealed.

961217:	Acknowledged understanding of eligibility but not recommended for promotion to Cpl because of NJP.  Applicant chose not to make a statement.

961227:	Counseling:  Advised of deficiencies in performance and conduct (Frequent involment with military/Civilian authorities.), necessary corrective actions explained, sources of assistance provided, and administrative action or limitation on further service warning issued.

970529:	Counseling:  Advised of deficiencies in performance and conduct (Unauthorized absence on 970523 during which time you were the assistant duty Non-commissioned Officer.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970611:	Counseling:  Advised of deficiencies in performance and conduct (Pattern of misconduct as evidenced:  Your frequent involvement with military/civilian authorities.  In a one year period, you have been absent without authorization four times, made false official statements, been arrested for trespassing and carrying a concealed weapon, and violated a MCO by wearing an earring.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970626:	Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the promotion period Jul, Aug, Sep because of my numerous UA incidents and my page 11 entry dtd 970611.  Applicant chose not to make a statement..

970730:	Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the promotion period Jul, Aug, Sep because of my lack of maturity and poor judgement.  Applicant chose not to make a statement.

970807:	NJP for violation of UCMJ, Article 86:
	Specification:  In that LCpl F_ (Applicant), did, at or about 0545, on 970801, without authority, absent himself from his appointed place of duty, at which he was required to be, to wit:  Chosin line platoon formation, located at MCRD, PISC, and did remain so absent until at or about 0820, on 970801.
	Award:  Forfeiture of $505.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  Not appealed.

971121:	NJP for violation of UCMJ, Article 92:  
Specification:  In that Private 1^st Class F_ (Applicant), having knowledge of a lawful order issued by Commander R_ to give his command a copy of his SIQ chit and to remain SIQ for a period of 48 hours, an order which it was his duty to obey, did, on or about 971113, fail to obey the same by wrongfully not remaining in his BEQ room 124, Bldg 700, and failing to give his command a copy of his SIQ chit.
Violation of UCMJ Article 86:
In that Private First Class F_, did, on or about 0630 971114, without authority, absent himself from his appointed place of duty at which he was required to be, to wit:  Bldg 700, room 124, and did remain so absent until 1645, 971114.
	Award:  Forfeiture of $450.00 pay per month for 1 month (Suspended for 6 months), restriction and extra duty for 45 days, reduction to E-1.  Not appealed.

971210:	Applicant informed the least favorable character of service possible was under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  The basis for this recommendation is [Applicant’s] discreditable involvement with authorities during this enlistment as evidenced by his four non-judicial punishments and four other adverse entries contained on [Applicant’s ] page 11.

971211:	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 and the right to submit statements in rebuttal of separation.

971211:	Commanding Officer, Weapons and Field Training Battalion, Marine Corps Recruit Depot, recommended Applicant’s discharge with an under other than honorable conditions characterization by reason of misconduct due to a pattern of misconduct.  The basis for this recommendation is the respondent’s discreditable involvement with authorities during this enlistment as evidenced by his four non-judicial punishments, and four other adverse entries contained on page 11 of his service record book.  Commanding Officer’s comments:  “Based upon the enclosures it is my opinion that an under other than honorable conditions characterization of service is warranted.  Retention of the respondent would adversely affect the morale, discipline, and military effectiveness of this organization.”

971218:	Letter from Commanding General, Marine Corps Recruit Depot/Easter Recruiting Region, dtd 971218.  Subj:  Notice of Persona Non Grata. Applicant ordered not to return to Marine Corps Recruit Depot, Parris Island. 

971218:	SJA review determined the case sufficient in law and fact.

971218:	Commanding General directed that the Applicant be discharged 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 19971223 by reason of misconduct due to a pattern of misconduct (A and B) with a service characterization of under other than honorable conditions.  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).  The Board presumed regularity in the conduct of governmental affairs (E).

The Applicant requests upgrade of his characterization of service.  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 three retention warnings and four nonjudicial punishment proceedings for violations of UCMJ Articles 86 (unauthorized absence), 92 (failure to obey an order), and 107 (false official statement).  Violations of UCMJ Articles 92 (violate an order) and 107 (false official statement) are considered serious offenses for which a punitive discharge is authorized at courts-martial.  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 would like to return to the military.  The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces.  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.  The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this 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 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, Articles 92 (violate an order) and 107 (false official statement).

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.

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.  

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