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

 ex-LCpl, USMC
Docket No. MD01-00115

Applicant’s Request

The application for discharge review, received 001031, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010406.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety but did find inequity in the characterization of the applicant’s service.  The Board’s vote was 4 to 1 that the character of the discharge shall change to: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues
To whom it may concern:

I am requesting the Board review my Record Book and the attached statement to determine my eligibility for a discharge upgrade to Honorable.  The evidence I have to support my request is as follows:

There are many inconsistencies between my page 11 (Ref A), page 12 (Ref B), and my awards page plus the positions I held while on active duty.  These positions were Library Chief, Police Sergeant, BEQ Manager, and Assistant Loading NCO and other tasks assigned to me by my superiors.

My discharge was characterized as a pattern of misconduct; however, the dates on my awards page in my service Record Book (Ref C) are in my first enlistment plus one in 1997. 1 believe that if I had a pattern of misconduct, I would not have been able to reenlist and would not have received a certificate of commendation 11 months before I was discharged.

I do accept responsibility for my mistakes; however, I believe that what occurred the last 1-1/2years of my 2nd enlistment was an injustice.  I planned to make the Marine Corps my career.  I believe the mistakes I made did not warrant the character of discharge I received.  The rest of this letter details the events that took place from the beginning of my tour at Cherry Point, NC through the end of my 2nd enlistment.

When I first arrived at Cherry Point, I experience the normal adjustment life style in the fleet as others do.  I received two non-recommendations for Cpl. in June 1994 and August 1994.  Both were for not having my March selections memorized.  I accepted this because memorizing music was vital to our Unit.  My Record Book is clean other than those two incidents for my first enlistment (see attached Awards list Ref C).

Boots not properly maintained and were dirty, sweat stains on shirt and wrinkles on shirt and trousers (this was all on one in-house counseling sheet).  The dirt was actually grass accumulated during a change of command ceremony on a grassy field at Cherry Point.  I was inspected during a muster directly after the change of command.  I did sweat and accumulate wrinkles during the change of command; since it was summer, everyone did also.

I did make a statement on the above incidents but my OIC said it was nothing but an excuse.

Around mid-July I was given another in-house (written) because I forgot to lock my wall locker in the changing area.  My punishment was given to me by the Police Sgt., (I was assistant Police Sgt. at the time), which was to clean the entire Unit building.  She would inspect the work before I went home.  The Police Sgt. was walking around the building as I was leaving.  I assumed that had inspected the building so I waved at her (indicating I was leaving) and she waved back.  This was normal procedure; her waving back indicated I could go home.  The next day I was informed that I was going up for NJP for all my uniform discrepancies.  I was also informed that I disobeyed a direct order by leaving the building the day prior before the Police Sgt. completed her inspected.  I was never charged for this infraction and it was not a part of my upcoming NJP.  I consulted an attorney and he informed me that we could win my case.  I went to the Sgt Major and told him that I would like to have a court martial.  He told me that if I pressed a court martial, he would bring other charges against me other than what I was being charged with at this time.  Again, I was threatened and afraid to make a stand so I took the NJP.  I found out later that the Sgt Major's threats could not legally be carried out.  The outcome of the NJP was that I was reduced in rank to E-3.  After my NJP, one of the Sgt.'s mentioned earlier, pulled me aside and told me that he was sorry and he didn't think they would go as far as an NJP.  The in-house consultation sheets stopped for a while.  I made it a point to not change the way I did things because I knew I was not doing anything wrong.  This was a good decision as I received good reports on my uniforms, performance and overall general conduct.  I was denied promotion twice because it was not long enough after my NJP.

Since I arrived at Cherry Point, I have had a history of migraine and sinus   headaches and in October 1996, 1 had sinus surgery.  In March 1997, 1 was sitting at the duty desk with my head lowered rubbing my eyes.  I had gone to sick call on March 11, 1997, for a migraine headache.  One of the Sergeants in my Unit reported to the OIC that I was sleeping on duty.  He did not question me at the time about my action to find out what I was doing or why.  He went straight to the OIC (jumping the chain of command).  I was called into the OIC's office and asked why I was sleeping on duty.  I told him that I was not sleeping that I had a migraine headache.  He told me that I was making excuses again and tried to write me up.  Since they could not prove that I was sleeping, they accused me of keeping my eyes closed for an extended period of time, which violated General Order Nos.  I & 2 for Sentries.  I received a page I I for this incident.  I did not make a statement because I did have my eyes closed, but was not sleeping; therefore, the charge of keeping my eyes closed was accurate.  Because of this page I 1, I was again denied the promotion to Cpl.

I finally achieved the rank of Cpl., again, in October 1997.  About a week after I was promoted, one of the Sgt.'s in my Unit pulled me aside and told me he did not believe I deserved to have the rank of Cpl. and that he was going to try to get me "busted" again.  After this, things became unbearable for me not only at work, but physically, financially and in my marriage.

During this time, I was getting in-house counseling for my weight.  My maximum weight was 197 lb. and I was weighing in at 203 lb.  I worked hard and achieved my maximum weight.

In mid-June, I was 5 minutes late for work and 15 minutes late in July.  The first incident my alarm clock did not go off.  I was ordered to go purchase a new alarm clock and I did.  The second incident our clock was set an hour off.  When realizing I only had 10 minutes to get to work, I immediately called my Unit.  I informed them that I was going to be a few minutes late.  The Sgt I spoke with told me okay and that I was covered.  When I arrived at work, the Staff NCOIC told me that he was going to recommend NJP for tardiness.  I did not make a written statement on this matter.  I did, however, make a verbal statement to my Commanding Officer that I felt I was being unfairly treated.  Other individuals were late on a consistent basis and were not punished.  Example: a Cpl. was late for duty three times in a row and given a one page 11; after the third time he was late, two months later he was promoted to Sgt.  The order states that you cannot achieve the next rank after a page 11 until you have a clean record for six months.

After this, I went on leave with my wife to pick up our children who were visiting family in Texas.  In route, we were involved in an automobile accident that completely totaled our only vehicle.  We finally received another car from my wife's grandparents in Missouri.  On the way back to North Carolina, everything that could go wrong with a car, did (i.e.: power steering pump went out as did the belts, battery and the transmission was failing).  When we arrived at home, I went back to work under the impression that everything was fine (at work), as I had called to keep the Unit informed.

One afternoon before muster, I went to leave for work and found that the radiator had a leak.  I went to get my brother so he could take me to get a hair cut and then to muster.  With all that was going on with the Sgt.'s, I was concerned about showing up without getting my haircut.  We did not have a telephone at the time; however, I didn't think it would make any difference if I called or not because it did not make a difference the previous time.  I know this was very irresponsible attitude.  After everything I had and was still going through with my Unit, I really didn't care anymore at that time.  The results of this action was that I arrived at work 55 minutes late.  I was called into the Staff NCOIC's office.  He gave me a written in-house counseling sheet and suggested NJP.  I did not make a statement on this matter because I knew I was wrong.  I knew that no matter what had happened to me previously I should have called to let them know where I was, whether or not it made a difference.

This last incident that brought me to my final NJP.  I was stopped on base by an MP because my temporary tag was not visible.  I was then informed that I was driving on a suspended license that was a result of a wreck that happened in May of 1998. 1 was not notified that my license was suspended on base or in town.  I was detained by PMO until 0715.  My unit was going on a band trip at 0630. 1 called my Unit and spoke to the platoon Sgt. and informed her what was going on.  The Staff NCOIC called PMO to try and get me released, but his attempt failed which resulted in my missing a movement.

A few days after the Unit returned, I visited the CO for my final NJP.  Two charges were dropped, the one for missing a movement and the other for driving on a suspended license on base.  I was only charged with article 86 (being late).  This resulted in an Administrative Separation.

Since I have been out of the military, I have been an outstanding employee and citizen.  I spoke with my former OIC after my discharge.  During our conversation, he had told me that he made a mistake and should not have let me go.  He said that he was telling me this because I had the best bass trombone sound and that no one could play the way I could.  I accept responsibility for the things I did wrong while I was in the Marine Corps.  However, I truly believe that I was punished more harshly than was necessary.  My good years of service are greater than the infractions I committed.  When individuals and potential employers become aware of the discharge I received, they wonder if I am an honorable and honest person.  I have learned a lot since my leaving the military and I know I have matured.  I believe I served honorably in the Marine Corps and now honorably as a civilian.

I appreciate your taking the time to consider this upgrade request and award me an Honorable discharge.  When you do this, I will not disappoint you.  Again, thank you.

Documentation

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

Applicant's Statement (5pgs) 
Copy of DD Form 214
Copy of Wife's DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		920804 - 951201	HON
	Inactive: USMCR(J)		920313 - 920803	COG

Period of Service Under Review:

Date of Enlistment:  951202		Date of Discharge:  981123

Length of Service (years, months, days):

	Active:  02  11  22
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  66

Highest Rank:  CPL

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  NMF		Conduct:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, Meritorious Mast (2), GCM 

Days of Unauthorized Absence:  3 

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:

951202:	Reenlisted at MWHS 2 2D MAW MCAS CHERRY POINT NC for 4 years.

960321:	Counseled for deficiencies in performance and conduct.  [Failure to maintain proper hygiene and sanitary habits.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

960730:	NJP for violation of UCMJ, Article 134: Failure to maintain proper uniform standard.
	Award:  Forfeiture of $558.00 per month for 2 months (suspended for 6 months), restriction for 20 days, reduction to E-3 (suspended for 6 months).  Not appealed.

960814:	NJP imposed and suspended on 960730 for a period of 6 months is hereby vacated and the punishment is order executed. 

970314:	Counseled for deficiencies in performance and conduct.  [Dereliction of duty as the 2d MAW Band DNCO by keeping your eyes closed for an extended period of time.  You were in direct violation of General Orders 1 and 2.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

980202:	Counseled for deficiencies in performance and conduct.  [Financial irresponsibility] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

980515:	Counseled for deficiencies in performance and conduct.  [Failure to maintain Marine Corps standards and excessive tardiness.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

980715:	NJP for violation of UCMJ, Article 86: Absent from appointed place of duty.
	Award:  Forfeiture of $409.00 per month for 2 months (suspended for 6 months), 7 days extra duty, restriction for 20 days, reduction to E-3.  Not appealed

980925:	NJP for violation of UCMJ, Article 86: Absent from appointed place of duty from 1201-1255, 980908, violation of UCMJ Article 86: Absent from appointed place of duty from 0631 980912 to 1627, 980915 [3days] , violation of UCMJ Article 134: Failure to obey order and regulation, driving on state suspended license.
	Award:  Forfeiture of $519.00 per month for 1 month ($419.00 suspended, but no indication of how long in record) , extra duty for 30 days, reduction to E-2 (suspended, but no indication of how long in record).  No indication of appeal in the record.

981022:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

981022:  	Applicant advised of his 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.

981022:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  The factual basis for this recommendation was your continued instances of misconduct.  During your current enlistment, you have received two nonjudicial punishments and four adverse counseling entries on page 11 of your service record.  Despite efforts to encourage you toward honorable, productive service, you have responded with further misconduct.  By your actions, you have demonstrated that you have no potential for future service. 

981109:	SJA review determined the case sufficient in law and fact [Extracted from Commanding General Message].

981109:	GCMCA [Commanding General, 2d Marine Aircraft Wing] 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 981123 under other than honorable conditions for misconduct due to a pattern of misconduct (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 by a vote of 4 to 1 that the discharge was proper but not equitable (D and E).

In considering the applicant’s first issue the Board found no inconsistencies, as argued by the applicant, between the dates of his awards and his record of offenses and adverse counseling entries.  The applicant stated, “I believe that if I had a pattern of misconduct, I would not have been able to reenlist and would not have received a certificate of commendation 11 months before I was discharged.”  The Board found the applicant’s Meritorious Masts and Letters of Appreciation were awarded prior to his reenlistment in December 1995 and certainly contributed to the Marine Corps’ decision to retain him.  In fact, during this period of duty, the applicant’s proficiency and conduct markings averaged 4.5/4.5 -- evidence of exemplary performance.  The Board also noted one letter of commendation in the 2 years 11 months and 22 days of his second enlistment, which was offset by his several adverse counseling entries and 3 non-judicial punishments for violations of the USMJ.  These offenses form the basis of the discharge and occurred during the enlistment under consideration.  Accordingly, relief on this basis is denied.

In examining the applicant’s second issue, “I believe the mistakes I made did not warrant the character of discharge I received.”, the Board reviewed the applicant’s service record. The record reveals 3 NJPs and four adverse counseling entries.  One of the adverse counseling entries was not signed by any command authority and was not considered by the Board. While the applicant introduced allegations of unfair treatment by his chain of command, some possibly resulting from an incident involving his spouse and Marines senior to him, and a suggestion that his former OIC had admitted to making a mistake in discharging him, he provided the Board no evidence of these charges.  In considering the discharge, the Board disagrees with the applicant’s assertion that his overall service record warrants an Honorable discharge. 

However, the Board found the nature of the applicant’s offenses minor and that the applicant’s performance of duty did not suffer as a result.  The Board also found one of the three adverse counseling entries to be unsubstantiated and the applicant’s rebuttal of another to be substantiated by his health record.  Further, the Board considered the applicant’s very successful first enlistment as evidence of his good character.  In deliberating the application, the Board found that the applicant’s conduct falls short of that required for an honorable characterization of service, however, is appropriately recognized by award of General (Under Honorable Conditions) discharge.  Partial relief is therefore granted on the basis of equity.

The following is provided for the applicant’s edification.  The NDRB is authorized to consider outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  However, there is no law or regulation that provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the service.  Normally, to permit relief, an error or injustice must be found to have existed during the period of enlistment in question.  In determining whether a case merits a change based on post-service conduct, the NDRB considers the length of time since discharge, the applicant's record of community service, employment, conduct, educational achievements, and family relationships. Verifiable proof of any accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a discharge.  The applicant's efforts need to be more encompassing than those provided.  While the Board voted 4 to 1 to upgrade to a General (Under Honorable Conditions), there was sentiment that with sufficient post-service contributions to the community, the applicant would be welcomed to appear before the Board to appeal for an Honorable discharge.  At that time the applicant should produce evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities in order for consideration for an upgrade based on post-service conduct. 

The applicant is reminded that he remains eligible for a personal appearance hearing provided that an application is received within 15 years from the date of discharge.  Representation at a personal hearing is not mandatory, but is strongly recommended.  This representation need not be a lawyer, but may be any person of stature and good standing in the community, including the various veterans’ service organizations.

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.  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.  

C.  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.

D.  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