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Docket No. MD06-00899

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

FOR OFFICIAL USE ONLY

 ex-Pvt, USMC
Docket No. MD06-00899

Applicant’s Request

The application for discharge review was received on 20060504.  The Applicant requests a documentary record discharge review.  The Applicant did not specify his requested Board action.  The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20070426.  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

Applicant’s Issues

1.	(Equity)  The Applicant indicates his new command indicated he transferred with a “clean slate.”
2.	(Equity) The Applicant was dealing with personal issues at the time of his separation.
3.	(Equity) The Applicant was unfairly characterized during his administrative board.

Documentation

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

Applicant’s DD Form 214 (Member 4)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19971121 - 19971215	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19971216		Date of Discharge:  20001130

Length of Service (years, months, days):

Active:    02  11  15  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  none
	Confinement:		  24 days

Age at Entry:  24 

Years Contracted:  5 

Education Level:  15				AFQT:  80

Highest Rank:  PFC				MOS:  0811

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0 (7)			Conduct:  4.0 (7)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Sea Service Deployment Ribbon, Rifle Expert 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:

990304:	Counseling:  Advised of deficiencies in performance and conduct (Dropped from the Technical Engineer Course due to academic failure.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990311:	NJP for violation of UCMJ, Article 92:  On or about 2116, 990227 fail to obey a lawful order.
	Violation of UCMJ, Article 92: Failed to obey a lawful order on or about 2116, 990227.
Violation of UCMJ, Article 134: On or about 2116, 990227, break restriction.
	Award:  Forfeiture of $479.00 pay per month for 1 month, restriction and extra duty for 45 days (suspended for 6 months), reduction to E-1.  Not appealed.

990812:	NJP for violation of UCMJ, Article 92:  Failure to obey other lawful order, on or about 0017, 990725.
		Award:  Restriction and extra duty for 14 days.  Not appealed.

000505:	NJP for violation of UCMJ, Article 90:  Willfully disobeyed a lawful order on or about 0145, 000502.
Violation of UCMJ Article 92: Willfully disobeyed a written lawful order by failing to sign out on liberty on or about 0145, 000502.
Violation of UCMJ Article 107: Wrongfully made a false statement on or about 0145, 000502.
	Award:  Forfeiture of $263.00 pay per month for 1 month, restriction and extra duty for 14 days. Extra duty for 14 days (suspended for 6 months).  Not appealed.

000619:	Counseling:  Advised of deficiencies in performance and conduct (Unauthorized absence and disobeying a direct order), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000621:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 86:
	Specification: Failed to go at the time prescribed to his appointed place of duty.
	Charge II: violation of the UCMJ, Article 92:
	Specification: Willfully disobeyed a written order by having a female guest in his barracks room. 
	Charge III: violation of the UCMJ, Article 107:
	Specification: Wrongfully made a false official statement. 
Charge IV: violation of the UCMJ, Article 128:
	Specification: Assaulted a Marine by throwing a beer bottle out a fourth deck of the barracks.
Finding: to Charge I and the specification thereunder, not guilty.  To Charges II, III an IV and specifications thereunder, guilty.
	Sentence: Forfeiture of $670.00 pay per month for 1 month, reduced to E-1, confinement for 30 days.
	CA action 000621:  Sentence approved and ordered executed.

000629:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of a pattern of misconduct.  The factual basis for this recommendation was repeated incidents of misconduct.  Applicant informed the least favorable character of service possible was as under other than honorable conditions.

000630:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

000726:	NJP for violation of UCMJ, Article 92:  Disobeyed a lawful written order on or about 1630 000722.
	Award:  Forfeiture of $234.00 pay per month for 1 month, restriction and extra duty for 14 days.  Not appealed.

000727:	Counseling:  Advised of deficiencies in performance and conduct (Alcohol related incident on 990227), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000727:	Counseling:  Advised of deficiencies in performance and conduct (Alcohol related incident on 000621), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000816:	Commanding Officer, 3^rd Battalion, 12^th Marine Regiment, recommended Applicant’s discharge under other than honorable conditions by reason of pattern of misconduct.

001006	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to pattern of misconduct, that such misconduct warranted separation, and recommended discharge under other than honorable conditions.

001102:	SJA review determined the case sufficient in law and fact.

001107:	GCMCA, Commanding General, 3d Marine Division, 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 20001130 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).  

Issues 1-3.  The Applicant implies that his discharge is inequitable because he was going through “personal issues” at the time of his separation.  The Applicant also contends that his command told him he was transferred with a “clean slate” and that he was unfairly characterized at his administrative board.  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 two retention warnings prior to being notified of his Commanding Officer’s intent to recommend his separation.  The Applicant’s service is also marred by violations of Articles 90, 92, 107 and 128 of the UCMJ.  Each one of the Applicant’s violations of the preceding Articles of the UCMJ is the commission of a serious offense.  The Applicant’s violations resulted in four nonjudicial punishment proceedings and a conviction at summary 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 Marine Corps and falls far short of that required for an upgrade of his characterization of service.  The evidence of record did not show that the Applicant was not responsible for his conduct, that he should he not have been held accountable for his actions or that his discharge was otherwise inequitable or improper. Relief is not warranted.

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided any post-service documentation to consider mitigating the misconduct that resulted in the characterization of discharge.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment, enlistment or educational opportunities.  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.  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 90, disobey a superior commissioned officer, Article 92, disobey a lawful order, Article 107, false official statement or Article 128, assault.

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