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

 ex-PVT, USMC
Docket No. MD00-00759

Applicant’s Request

The application for discharge review, received 000523, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance hearing discharge review before a traveling panel closest to San Diego, CA.  The applicant did not list any representative on the DD Form 293.  In the acknowledgement letter to the applicant, the applicant was informed that the Naval Discharge Review Board (NDRB) does not travel, all hearings are held in the Washington, DC Area.  NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 001201.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  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. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  I would like the opportunity to have my re-enlistment code status upgraded.  I would like the chance to serve my country in the manner to which I know I can, I know that I could be someone that is trustworthy, dependable and capable to do the duties in which are expected of me.  So therefore I would like to request the upgrading of my re-enlistment code and my under other than honorable conditions discharge.  Thank you for your time and understanding.  Also another issue that I would like to share is that, I am currently married with 3 kids.  I feel that I am ready for all responsibility that is required with such a position.  I feel I was treated very unfairly at the time of my administration separation.  I was not assisted properly in trying to explain my side of what happened in doing this request I am hoping to have the opportunity to explain my actions and what the problem that I feel was overlooked.  I felt very strongly that it had a lot to do with racism, but was not given the chance to tell my side.  My lawyer told me to do things his way, but given the opportunity again, I would make sure everything is said and nothing left out.  I have adequate proof to back up the charges that were against me in which led up to my discharge.  Once again Thank you for your time and patience.

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		970320 - 970421	COG

Period of Service Under Review:

Date of Enlistment:  970422		Date of Discharge:  990929

Length of Service (years, months, days):

	Active:  02  05  07
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  12			AFQT:  41

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.90 (7)		Conduct:  3.6 (7)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Expert Badge, Pistol Marksmanship Badge, LOA

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. 6210.3.

Chronological Listing of Significant Service Events:

980430:	Counseled for deficiencies in performance and conduct.  [Horseplay on 980331 which resulted in an ankle injury thus forcing your removal and replacement on the Battalion Guard, unauthorized absence from 1st Tank Bn Motor Pool for HUMMVV school from 0800 until 1300 on 980403, failure to inform chain of your whereabouts, and involvement of a discreditable nature by knowingly operating a motor vehicle in the state of California and aboard the Combat Center without valid permit or license].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

980529:	NJP for violation of UCMJ, Article 92: Failed to obey CCO P1630.8B, by driving on base without license on or about 980518, violation of UCMJ, Article 91: Willfully disobeyed GySgt K____, by driving on base without a license on or about 980518.
Awarded forfeiture of $242.00 per month for 1 month (suspended for 3 months), restriction for 14 days (suspended for 3 months).  Not appealed.

980626:	Counseled for deficiencies in performance and conduct.  [Driving a vehicle without proper registration, insurance and disregarding instruction to report to my Company First Sergeant the following day] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

980630:	NJP imposed and suspended on 980526 for a period of 3 months is hereby vacated and the punishment is ordered executed.
 
980805:	NJP for violation of UCMJ, Article 134: Wrongful with intent to deceive, altered his light duty chit by placing and "X" on the "NO field duty", violation of UCMJ Article 134: On or about 980721, wrongfully solicity to wit: Asked BAS personnel to falsely say they had marked the "X" on the light duty chit, violation of UCMJ Article 107: Make to 1ST Sgt R______'s a false official statement that an unknown DOC had marked the "X" on the chit, which he knew was false.
	Award:  Forfeiture of $463.00 per month for 1 month (suspended for 6 months), restriction and extra duty for 45 days, reduction to E-1.  Not appealed.

980812:	NJP imposed and suspended on 980731 for a period of 6 months is hereby vacated and the punishment is ordered executed. 

980927:	Counseled for deficiencies in performance and conduct.  [You have a repeated trend and pattern of severe misconduct, Specifically, you have shown a continual disregard for Bn, Co, and Platoon orders.  You have also shown a complete lack of responsibility and accountability in repeated unauthorized absences from formation and movement to the field.  You have also shown a complete lack of integrity and judgement] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

990505:	Counseled for deficiencies in performance and conduct.  [Financial misconduct in regards to improper check writing during the months of February and March, I wrote several checks with the knowledge of not having sufficient funds in my account.  My actions were in violation of the UCMJ and of a discreditable nature.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

990615:	Counseled for deficiencies in performance and conduct.  [On June 2, 1999, you were involved with civilian authorities in a neighborhood dispute after consuming alcohol.  Then on June 4, 1999 you were involved in a domestic dispute involving injuries (alcohol was not involved] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

990630:	Counseled for deficiencies in performance and conduct.  [On June 30, 1999, you were UA for a 0600 platoon PT formation.  You have been formally counseled on being late or UA on numerous occasions] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

990712:	Counseled for deficiencies in performance and conduct.  [Your 990708 civilian court conviction in San Bernandino County Court for Resisting Arrest (arrest noted on your 990615 page 11 entry) and your assigned semi-annual conduct mark of 3.5. The conduct leading to this conviction and low conduct mark is indicative of your lack of discipline and lack of desire to pursue guidance offered to you to overcome previously noted deficiencies.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

990723:	NJP for violation of UCMJ, Article 86: UA, on or about 990712, SNM was 15 minutes late to his Domestic Abuse Intervention Program Class, violation of UCMJ Article 86: UA, on or about 990714, SNM was 10 minutes late to his Domestic Abuse Intervention Program Class.
	Award:  Forfeiture of $479.00 per month for 2 months (suspended for 60 days), restriction for 10 days, extra duty for 25 days, reduction to   E-1.  Not appealed.

990724:	Commanding Officer, Co D, 1st TkBn, recommended discharge under other than honorable conditions by reason of unsatisfactory performance and pattern of misconduct.  The basis for this recommendation is 3 NJP’s, 2 vacated sentences, and 10 page 11 counselings.  

990805:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

990805:	Applicant requests to remain in the Marine Corps.  He states “There is no excuse for the way that I have acted,…I am deeply remorseful of  my actions and the pains I have bestowed on my ..” 

990817:	Applicant advised of his rights and having elected 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 and to submit written statements in rebuttal.

990817:	Commanding officer, 1st TankBn, recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  “The basis for this recommendation is a culmination of his violations of the UCMJ coupled with SNM’s failure to correct his deficiencies.” 

990902:	SJA review determined the case sufficient in law and fact 

990909:	GCMCA [CG, 1st MARDIV] 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 990929 under other than honorable conditions for misconduct due to a pattern of misconduct (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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).

Concerning a change in reenlistment code, ( issue 1), the NDRB has no authority to change reenlistment codes or make recommendations to permit reentry into the naval service or any other of the Armed Forces.  The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Marine Corps.  Reenlistment policy of the naval service is promulgated by the Commandant, United States Marine Corps, Code MMEA, 3280 Russell Road, Quantico, VA 22134.  Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment.  A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  Relief denied.

The applicant believes that he was treated unfairly and that racism had a lot to do with his discharge.  The Board found nothing in his records, nor did the applicant provide any documentation, to substantiate these allegations.  The Board did find that the applicant provided a letter requesting permission to remain in the Marine Corps where he stated that he could “not blame anyone but myself” for his behavior. This statement is in complete opposition to his comments in issue 1.  Relief denied.

The applicant is reminded that he is eligible for personal appearance hearing within 15 years from the date of his discharge.  Post-service conduct can be considered.  Documentation is 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 95 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.

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