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

FOR OFFICIAL USE ONLY

ex-Pvt, USMC
Docket No. MD06-00675

Applicant’s Request

The application for discharge review was received on 20060419.  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 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 a pattern of misconduct.

PART I - ISSUES AND DOCUMENTATION

Decisional Issues

Propriety – Error of procedure 

Documentation

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

Statement from Applicant, undated
Applicant’s DD Form 214 (Member 1 and 4)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	20030515 - 20030824	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20030825		Date of Discharge:  20050616

Length of Service (years, months, days):

Active:    01  09  22
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  21

Years Contracted:  4

Education Level:  12				AFQT:  53

Highest Rank:  PFC				MOS:  0151 (Administrative Clerk)

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.4 (6)				Conduct:  3.5 (6)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Sea Service Deployment Ribbon, Global War on Terrorism Service Medal, National Defense Service Medal, Rifle Marksman Badge

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:

040714:	NJP for violation of UCMJ, Article 121: At H&S Co, BLT 1/4, 11th MEU on or about 1900, 040704, steal a carton of cigarettes, of a value of approximately $38.00, the property of Private First Class G_.
	Award:  Forfeiture of $312.00 per month for 1 month.  Not appealed.

040911:	NJP for violation of UCMJ, Article 121: Did at H&S Co, BLT 1/4, 11th MEU, on or about 040822, steal U. S. Postal mail (periodical) of an unknown value, the property of another Marine.
	Award:  Forfeiture of $596.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. Forfeiture for 1 month and restriction and extra duty suspended for 6months.  Not appealed.

040913:	Counseling:  Advised of deficiencies in performance and conduct (On 040620, Applicant was observed by members of your section walking away with a carton of cigarettes.  On 040709, Applicant was found guilty at Company Commanders NJP.  On 040827, Applicant was caught with U.S. Mail in his possession.  On 040911, Applicant was found guilty at Commanding Officers NJP.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

040916:	Forfeiture of pay, restriction and extra duty awarded at NJP on 040911 vacated.

040927:	Counseling:  Advised of deficiencies in performance and conduct (Article 92: Disobeying a lawful order.  On 15 September you (Applicant)  were performing the duties as Escort to Iraqi National workers aboard Forward Operating Base Hotel.  Fell asleep in the presence of workers while having a condition three weapon within reach.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

041229:	NJP for violation of UCMJ, Article 121: Did at H&S Co, BLT 1/4, 11th MEU, FOB Hotel, Iraq, on or about 041219, steal $200.00 from a wallet, the property of LCpl C_.
	Award:  Forfeiture of $596.00 per month for 2 months, restriction for 60 days.  Not appealed.

050115:	Counseling:  Advised of deficiencies in performance and conduct (On 041219, assigned to guard Iraqi Vendors you (Applicant) were handed a wallet by an Iraqi vendor with $800.00 (USD), later a SSgt was informed and questioned you.  It was then discovered that you had purchased two paintings for $100.00 after receiving the wallet.  The $100.00 bill used to buy the paintings fell in sequential order to the other $600.00 remaining in the wallet, and the last $100.00 was found hidden in your boot, only after a search.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

050501:	Applicant’s personal statement to the Commanding General, 1st Marine Division.

050502:	Applicant notified of intended recommendation for discharge as under other than honorable conditions by reason of a pattern of misconduct.  Applicant informed the least favorable character of service possible was as under other than honorable conditions.

050503:	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 and to submit a statement.

050504:	Commanding Officer, 1st Battalion 4th Marines, recommended Applicant’s discharge under other than honorable conditions by reason of a pattern of misconduct.

050602:	SJA review determined the case sufficient in law and fact.

050606:	GCMCA, Commanding General, 1st Marine Division (Rein) directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct.

050614:	NJP for violation of UCMJ, Article 80 (3 specs):
	Specification 1: On 050329, attempt to steal U. S. currency of a value of $300.00, the property of 1st Battalion 4th Marines.
	Specification 2: On 050330, attempt to steal U. S. currency of a value of $500.00, the property of 1st Battalion 4th Marines.
	Specification 3: On 050402, attempt to steal U. S. currency of a value of $500.00, the property of 1st Battalion 4th Marines.
Violation of UCMJ, Article 107 (2 specs):
Specification 1: On 050130, with intent to deceive, sign an official record, to wit: a Navy and Marine Corps Achievement Medal and forwarding enclosures, which record was totally false, and was then known by the said Private F_(Applicant) to be so false.
Specification 2: On 041001, with intent to deceive, sign an official record, to wit: a promotion warrant, promoting the said Private F_ to the rank of Lance Corporal, which record was totally false, and was then known by the said Private F_ to be so false.
Violation of UCMJ, Article 123 (3 specs):
	Specification 1: On 050329, with intent to defraud, falsely make and utter a certain check.
	Specification 2: On 050330, with intent to defraud, falsely make and utter a certain check.
	Specification 3: On 050402, with intent to defraud, falsely make and utter a certain check.
	Award:  Forfeiture of $228.00 per month for 1 month, restriction for 14 days.  Not appealed.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20050616 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).  

Propriety – Error of procedure:  The Applicant contends that he was discharged for the wrong reason.

The Applicant's other than honorable discharge was proper and equitable.  The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted.  There is no evidence of impropriety, inequity or procedural irregularities in the Applicant's discharge.  The Applicant's misconduct is clearly documented.  The summary of service clearly documents that pattern of misconduct was the reason the Applicant was discharged.  Since no other Narrative Reason for Separation could more clearly describe why the Applicant was discharged, a change would be inappropriate.  He acknowledged and waived his rights to administrative review.  He was notified that by waiving his rights and accepting an other than honorable discharge, he could possibly encounter significant difficulties in obtaining employment and other benefits.  The Applicant was afforded the appropriate due process during the processing of his case.  Relief 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 3 retention warnings and 4 nonjudicial punishment proceedings for violations of  Articles 80 (conspiracy, 3 specs), 107 (false official statements, 2 specs), 121 (larceny, 3 specs) and 123 (forgery, 3 specs).  In addition, the Applicant had a suspended NJP award vacated due to continued misconduct.  Violations of UCMJ Articles 80, 107, 121, and 123 are considered serious offenses for which a punitive discharge is authorized if adjudged by a special or general court 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.

For the edification of the Applicant, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  

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 P1900.16F), 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 80 (conspiracy), 107 (false official statement), 121 ( larceny) and 123 (forgery).

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