Author: CAP
Last saved by: joseph.curtis
Company: NCPB

Docket No. MD06-00761

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

FOR OFFICIAL USE ONLY

ex-Pvt, USMC
Docket No. MD06-00761

Applicant’s Request

The application for discharge review was received on 20060511.  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 20070308.  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 - APPLICANT’S ISSUES AND DOCUMENTATION

Applicants Issue, 

The Applicant is requesting an upgrade to become eligible for Veterans Administration benefits and to enlist in the National Guard.

Documentation

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

Applicant’s DD Form 214 (Member 4 and Member 1)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	20020723 - 20020726	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20020727		Date of Discharge:  20050817

Length of Service (years, months, days):

Active:    03 00 21 (Does not exclude lost time.)
	Inactive:  None	

Time Lost During This Period (days):

	Unauthorized absence:  4 days
	Confinement:		  None

Age at Entry:  19

Years Contracted:  4 

Education Level:  13				AFQT:  47

Highest Rank:  LCpl				MOS:  3533

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0 (10)				Conduct:  4.0 (10) 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Rifle Marksmanship Badge, Iraq Campaign Medal, Global War on Terrorism Service Medal, Sea Service Deployment Ribbon, National Defense Service Medal, Navy Unit Commendation, Letter of Appreciation

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.3.

Chronological Listing of Significant Service Events:

030210:	Counseled for deficiencies in performance and conduct.  [Misconduct and violation of Article 92 x 2, UCMJ.  On or about 030205 during a health and comfort, a bottle of Original Orange Rum Bacardi was found in your wall locker.  Alcohol is not permitted in the barracks.]  Necessary corrective actions explained, sources of assistance provided, and disciplinary action issued.

030210:	NJP for violation of UCMJ, Article 92: 
	Specification:  On or about 030205, a bottle of Original Orange Rum Bacardi was found in your wall locker during a health and comfort inspection, alcohol is not allowed in the barracks.
	Violation of UMCJ, Article 92:
	Specification:  On or about 030205, you had alcohol in your possession while being a minor, this against the law.
	Award:  Forfeiture of $645.00 pay per month for 2 months (suspended for 1 month), restricted for 60 days.  Not Appealed.

040624:	NJP for violation of UCMJ, Article 92:  
	Specification:  In that SNM on 040612 fail to obey a direct order given by Sgt E_ to wit:  clean out, off load and refuel the trucks.
Violation of UCMJ, Article 92:  
Specification:  In that SNM on 040612 fail to obey a direct order given by GySgt H_ to wit: pass the word to your platoon Sergeant that you and your platoon Sergeant are to report to the Company First Sergeant at 1730.
	Award:  Forfeiture of $668.00 pay per month for 2 months, extra duty for 45 days (forfeiture of $668.00 suspended for 6 months), reduction to E-2 (suspended for 6 months).  Not appealed.

050224:	NJP for violation of UCMJ, Article 91:
	Specification:  On 050118 on or about 1600, SNM was talking in formation and when addressed about it by Cpl B_, SNM replied, “I wasn’t ------ talking to you,” Or words to that effect.
Violation of UCMJ Article 91:  On 050119 on or about 1700, SNM was talking in formation and corrected by Cpl G_, SNM responded, “Watch who you are ------- talking to.”  Or words to that effect.
Violation of UCMJ Article 92:
Specification:  On 050112 SNM was U/A for platoon PT formation.
Violation of UCMJ Article 92:  
Specification:  On 050124 SNM was U/A for platoon formation.
Violation of UCMJ Article 92:
Specification:  On 041218 SNM was U/A for platoon formation.
Award:  Forfeiture of $617.00 pay per month for 1 month, restriction for 60 days, reduction to E-1.  Not appealed:

050523:	Counseled for deficiencies in performance and conduct [violation of Article 90, willfully disobeying a superior commissioned officer and Article 134, General Article disobeying the Commanding Officer of Command Company.], Necessary corrective actions explained, sources of assistance provided, and discharge warning issued.

050606:	Commanding Officer, Combat Service Support Battalion-1 recommended that the Applicant be discharged under other than honorable characterization by reason of misconduct due to a pattern of misconduct.

050630:	NJP for violation of UCMJ, Article 86:  Unauthorized absence.
	In that Pvt S_ (Applicant) did, on or about 0700 on 050606, without authority, absent himself from his appointed place of duty at which he was required to be, to wit:  Tap Tamp classes 13150, 1^st FSSG, MCB, Camp Pendleton, CA, and did remain so absent until 1630 050610.
Violation of UCMJ Article 92:  Disobedience of a direct order.
Specification:  In that Pvt S_ was instructed on many occasions to keep his Chain of Command informed of any changes to his current situation and to check in with his work section if his status changes at Tap Tamp classes.
	Award:  Forfeiture of $617.00 pay per month for 1 month (Forfeiture $217.00 suspended for 6 months) restriction and extra duty for 45 days (Suspended for 15 days of restriction and extra duty).  Not appealed.

050718:	Commanding Officer, Combat Logistics Company-119 recommended that the Applicant be discharged under other than honorable conditions by reason of misconduct due to pattern of misconduct.  Commanding Officer’s comments:  “His conduct at work is at best below average and he needs constant supervision.  His attitude is poor as he expects himself to be discharged in the near future.  Since being NJP’d, Pvt S_ (Applicant) has shown no positive attributes that would warrant consideration of retention.  The seriousness, frequency and rapid timing of his offenses warrant him being discharged from the Marine Corps.”

050720:	NJP for violation of UCMJ, Article 86:  Unauthorized absence.
	Specification: In that Pvt S_ (Applicant) was UA for Battalion restriction check-in on the following dates:  30 June through 1 July, 1800-2200, 02 July through 05 July, 0700-2200, 06 July through 08 July, 1800-2200, 9 July 0700-1100.
Violation of UCMJ, Article 92:  Disobeying a lawful order.
In t hat Pvt S_ disobeyed a lawful order to wait for his battalion paperwork to be signed off by Lt. Col E_.  SNM left the Battalion area on 30 June and never received his paperwork and knowingly deceived the command by not checking in for restriction from 30 June through 9 July.
	Award:  Forfeiture of $617.00 pay per month for 2 months, restriction and extra duty for 45 days (forfeiture of $434 suspended for 6 months).  Not appealed.

050803:	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 factual basis for this recommendation was based on numerous NJPs and counseling.  

050803:	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.

050811:	SJA review determined the case sufficient in law and fact.

050815:	Commanding General, 1^st 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 20050817 by reason of misconduct due to a pattern of misconduct (A) 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 (B and C).  

The Applicant is requesting a general discharge.  When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  Characterization of service as under other than honorable conditions 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 the award of nonjudicial punishment (NJP) on 5 occasions for violations of the Uniform Code of Military Justice (UCMJ).  The Applicant’s misconduct included unauthorized absence, disobeying a direct order and disobeying a lawful order.  The Applicant’s conduct, which form the primary basis for determining the character of his service, reflect his misconduct, and fall below that required for a general characterization of service.  An upgrade to general would be inappropriate.  Relief is therefore denied.

The Applicant is requesting an upgrade to become eligible for Veterans Administration Benefits.   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.  Additionally, 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 is requesting an upgrade to enlist in the National Guard.  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

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

C.  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