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Docket No. MD06-00657

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

FOR OFFICIAL USE ONLY

ex-Pvt, USMC
Docket No. MD06-00657

Applicant’s Request

The application for discharge review was received on 20060412.  The Applicant requests the Discharge 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 designate a representative on the DD Form 293.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20070201.  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 by reason of misconduct due to minor disciplinary infractions.

PART I - ISSUES AND DOCUMENTATION

Decisional Issues

No decisional 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 215
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19910815 - 19920707	COG
	Active:    	19920708 – 19960111	HON

Period of Service Under Review:

Date of Enlistment:  19960112		Date of Discharge:  19980728

Length of Service (years, months, days):

Active:    02  06  16  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  21

Years Contracted:  4 

Education Level:  12				AFQT:  61

Highest Rank:  Cpl				MOS:  0151

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.2 (7) 		Conduct:  3.0 (7) 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Good Conduct Medal, National Defense Service Medal, Certificate of Commendation, Letter of Appreciation

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:

960112:	Reenlisted this date for a term of 4 years. 

960308:	Counseling:  Advised of deficiencies in performance and conduct ((a) Failure to follow orders; specifically on 960301 you were told to report back to the Bravo Company Officer after snapping in during grass week during the first week of the rifle detachment that you were assigned to.  (b) Failure to perform to the standards of a Non Commissioned Officer.  Having a Date of Rank of 950101, you have had sufficient enough time to sort, prioritize and having proofed the final product before submission to your SNCOIC.  Also, being on light duty, numerous medical chits not allowing you to PT with your unit, a separate program should be made in your spare time to help you obtain 100% fitness readiness, to help you become a well rounded Marine.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960403:	NJP for violation of UCMJ, Article 107:  At CoB, HqSvcBn, 2d SRIG, on or about 960213 you (Applicant) signed a false official document to wit:  BIR/ BTR during an Annual Audit stating that your PFT score was a 287, when you knew such document to be so false in that your PFT score was a 183.  Article 107:  On or about 960222 with the intent to deceive, make a false statement to GySgt B_ USMC that your twin sister was shot to death during a carjacking incident, which statement was totally false when made.
Award:  Forfeiture of $558.00 per month for 1 month (suspended for 6 months, reduction to E-3.  Not appealed.

960826:	NJP for violation of UCMJ, Article 91:  At CoB, HqSvcBn, 2d SRIG, on or about 960815, disrespectful to Sgt B_ by slamming the phone down on her desk and calling him a “------ ------.”
	Award:  Forfeiture of 7 days pay for $260.00 (suspended for 6 months).  Not appealed.

961113:	Forfeiture of pay awarded at NJP on 960826 vacated due to continued misconduct.

961216:	Counseling:  Advised of deficiencies in performance and conduct (In violation of Article 91 of UCMJ which resulted in Company Commander NJP conducted on 960826.  This action demonstrates professional deficiencies on your part and display’s a serious lack of judgement, maturity and self-discipline.), necessary corrective actions explained, sources of assistance provided.

961216:	Counseling:  Advised of deficiencies in performance and conduct (Unsatisfactory MOS Proficiency and Poor Attention to duty.  Specifically, you incorrectly prepared over 50 forms DD214 and improperly processed numerous retirement packages.  Further, you made no attempt to take any corrective action or inform the Chain of Command.), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.

970508:	NJP for violation of UCMJ, Article 92:  At CoB, HqSvcBn, 2d SRIG, 1140, 2 May 1997, having knowledge of BnO 1601.1, violated same by being in PFC P_ room while he was on restriction.
Award:  Forfeiture of $490.00 pay per month for 1 month (suspended for 6 months), reduction to E-2.  Not appealed.

970910:	NJP for violation of UCMJ, Article 92:  At CoB, II MEF, 970418, violated Base Order 5500.1E by possessing a loaded handgun on a military installation.
Award:  Forfeiture of $437.00 pay per month for 2 months (suspended for 6 months), extra duty for 45 days, reduction to E-1.  Not appealed.

970910:	Forfeiture of pay awarded at NJP on 970508 vacated due to continued misconduct.

970915:	Applicant not recommended for promotion to LCpl for October, November, December promotion period due to a recent NJP.  Applicant chose not to make a statement.

970919:	Counseling:  Advised of deficiencies in performance and conduct (Violation of Article 92, which resulted in Bn NJP on 970910.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

971008:	Abbreviated Limited Duty Medical Board Report.
	Diagnosis: Right knee PFS.
	Circumstances:  Fell while running.
	Treatment: Activity modification, physical therapy.
	Limitations: No running, humping, prolonged standing.
	Period of Limited Duty: 6 months.

971117:	Applicant not recommended for promotion to PFC for the month of December due to a NJP.  Applicant chose not to make a statement.

980618:	NJP for violation of UCMJ, Article 86:  At CoB, II MEF, fail to go to appointed place of duty:  French Creek Fitness Center, Sports Medicine Division, on 980420.
	Violation of UCMJ, Article 107:  At CoB, II MEF, 1030, 980403, made a false official statement to Chaplain G_:  In that she requested the afternoon off to attend her daughter’s school play, which Pvt H_’s request was fraudulent.
	Violation of UCMJ, Article 107:  At CoB, II MEF, 980406, made false official statement to RPC O_.  In that SNM stated she was at a therapy appointment on 980403, in which she knew her statement to false.  
	Award:  Forfeiture of $463.00 pay per month for 2 months, reduction to E-1.  Not appealed.

980630:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.  The factual basis for this recommendation was based on the (5) five NJP’s.  

980630:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

980630:	Commanding Officer, Headquarters and Service Battalion, II MEF, recommended that the Applicant be discharged under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.  The factual basis for this recommendation was based on (5) five NJP’s.    

980714:	SJA review determined the case sufficient in law and fact.

980721:	Commanding General, II Marine Expeditionary Force, recommended 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 19980728 by reason of misconduct due to minor disciplinary infractions (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).  

No decisional issues were submitted by the Applicant.

For the Applicant’s edification, the Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service if such change is warranted.  There is no evidence of impropriety or inequity in the Applicant’s discharge.  The Applicant’s misconduct is clearly documented.  Therefore, relief is denied. 

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 5 nonjudicial punishment proceedings for violations of Articles 86 (unauthorized absence), 91 (insubordinate conduct toward a non-commissioned officer), 92 (failure to obey order, regulation), and 107 (4 specs, false official statement) of the UCMJ.  Violation of UCMJ Articles 92 and 107 are considered serious offenses, for which a punitive discharge is authorized if adjudged by a special or general court martial.  In addition, the Applicant had 2 suspended NJP awards vacated due to continued misconduct and was not recommended for promotion on two occasions.  The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her willful failure to meet the requirements of her contract with the U.S. Marine Corps and falls far short of that required for an upgrade of her characterization of service.  Relief is not warranted.

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 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 92 (failure to obey order, regulation) 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.

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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 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