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NAVY | DRB | 2004 Marine | MD04-00214
Original file (MD04-00214.rtf) Auto-classification: Denied


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


ex-Pvt, USMC
Docket No. MD04-00214

Applicant’s Request
The application for discharge review was received on 20031117. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record review. The Applicant did not list a representative on his DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040720. 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/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.2.



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
Letter from Staff Sergeant, MI, ARNG, dated June 24, 2003
 Letter from CPT, FA, A-Battery Commander, undated
 Letter from 2LT, FA, MIARNG, Platoon Leader, dated September 6, 2003

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
          Inactive: USMCR (J)               940226 - 940911  COG
Period of Service Under Review :
Date of Enlistment: 940912               Date of Discharge: 960308

 Length of Service (years, months, days):
         Active: 01 05 27
         Inactive: None
Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 33
Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: 4.0 (6)                       Conduct: 3.8 (6)

 Military Decorations: None
Unit/Campaign/Service Awards: NDSM, SSDR, Letter of Appreciation

 Days of Unauthorized Absence: None
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 :

950815:  Counseled for deficiencies in performance and conduct. [Lack of integrity, failure to obey lawful orders and immaturity.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

951012:  NJP for violation of UCMJ, Article 92:
 Specification: Having knowledge of a lawful order issued by MARCORBASEJAPANO P11000.2, to wit: having a Japanese national female in room past 2300 on 2300, 951007 to 0830, 951008; fail to obey by not logging the female in the visitors log book and having the female stay overnight.
 Awarded forfeiture of $232.00 per month for 1 month, restriction and extra duties for 14 days. Not appealed.
951208:  NJP for violation of UCMJ, Article 92:
 Specification: Having knowledge of a lawful order issued by Commanding General, MCB, Camp Butler, Okinawa, Japan, to wit: BO P11240.30F dated 950918, an order which it was his duty to obey, did on 2230, 951201 fail to obey the same by operating a POV without a valid license.
 Awarded forfeiture of $427.00 per month for 2 months, restriction and extra duties for 45 days, reduction to Pvt. Not appealed.
951215:  Counseled for deficiencies in performance and conduct. [Misconduct, specifically; disobeying lawful orders, having opposite sex visitors in the BEQ during unauthorized time and operating a POV without a license, which resulted in NJP on 951012, and 951208.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
951218:  NJP for violation of UCMJ, Article 86:
 Specification: Fail to report at the time prescribed to appointed place of duty on 0700, 951209, to wit: restriction muster.
 Awarded forfeiture of $199.00 per month for 1 month, restriction and extra duties for 14 days. Forfeiture, restriction and extra duty suspended for 6 months. Not appealed.
960117:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.
960117:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
960122:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions. The factual basis for this recommendation was repeated incidents of misconduct. In his short time in the Marine Corps, he has received three nonjudicial punishments and two counseling entries on page 11 of his service record. Despite efforts to encourage him toward honorable, productive service, he has responded with further acts of misconduct. By his actions, he has demonstrated that he has no potential for further military service.

960222:  GCMCA [Commanding General, 3d Marine Division] directed the Applicant's discharge general (under other than honorable conditions ) by reason of misconduct based upon a pattern of misconduct. due to minor disciplinary infractions .

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19960308 under other than honorable conditions for misconduct due to minor disciplinary infractions (A and B). The Board presumed regularity in the conduct of governmental affairs (C). 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 (D and E).
The Applicant introduced no decisional issues for consideration by the Board. A characterization of service of 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. T he Applicant’s service was marred by award of nonjudicial punishment (NJP) on three occasions and adverse counseling entries on other occasions. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service. An upgrade to honorable is inappropriate. Relief denied.

 The Applicant’s discharge characterization accurately reflects his service to his country. Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity is evident during the Applicant’s enlistment. Additionally, 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 the service. Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his 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 18 Aug 95until 30 Jan 97.

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 86, unauthorized absence; and Article 92, disobey a lawful order.
C. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

 E. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 “ afls14.jag.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:
                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                   Washington Navy Yard DC 20374-5023      


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