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Docket No. MD02-00708

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

 ex-Pvt, USMC
Docket No. MD02-00708

Applicant’s Request

The application for discharge review, received 020418, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to (left blank).  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 030124.  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 and narrative reason of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/INVOL DIS (BOARD) (PATTERN OF MISCONDUCT), authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  I hereby submit this as ISSUE #1, in support of my Request for review and upgrade of my discharge from the United States Marine Corps on November 18, 1994.

The issue itself here is that I was let out of the Marine Corps at my own request.  On one occasion, I did take an Article 15 (NJP) to a Summary Court Martial.  But in my records you will clearly see, no discharge was awarded as a part of my Court Martial disposition.  According to two (2) career planners, there were not enough actions in my Service Record to warrant an Other than Honorable discharge, nor a reason of "Pattern of Misconduct" as the basis for the discharge.  There were however, circumstances that presented themselves and ultimately became my way to end my active contract; also their way to make sure they-got the last-laugh.  Those circumstances are quite lengthy but very important.  They are as follows:

I was promoted to the rank of Corporal with the 22d Marine Expeditionary Unit (MEU) on 1 February 1994.  I had gotten a divorce in July of 1993; we deployed on a six-month Mediterranean "float" one month later, in August of 1993.  It was supposedly an amicable divorce.  I was going to allow my ex-wife to drive my car from the time we deployed until the time we returned, in order to give her ample time to obtain her own vehicle.  In turn, she was going to make my $223.00 monthly payment for five of the six months she was driving my car.  She was also supposed to destroy all the credit cards she had of mine as an "authorized user".  Well, as with any ex-wife, she did nothing she was supposed to do.

Upon our return to the United States in February of 1994, I discovered she had delivered my car to my mother in December of 1993, and I was approximately three payments behind.  Not two days after our return, two repossession agents came to my base intent on leaving with my vehicle.  To my advantage, the Military Police would not let them have it without a Court Order from the Onslow County Superior Court.  During this time, I called my car company and made arrangements to pay this past due amount, and all was taken care of.

Additionally, I got several credit card bills where my ex-wife had "maxed out" my limits ... THEN, destroyed the cards.  I asked the credit card companies to investigate the charges and that I would not accept liability.  They told me I'd have to have her prosecuted in order to "zero out" my balances.  I consented.  However, after a lengthy investigation, they told me they could not determine definitively that she had used the cards, so they reinstated the charges and held me liable as the "primary card holder".  I foolishly decided that since they were not my charges, I would not pay the bills because to do so would put myself in financial hardship.

Well, after the episode with my car, someone in our unit decided my car might not be my only lapse in honoring my financial obligations.  So they decided to conduct their own investigation.

I had not told anyone about the credit card debts because I felt like my personal finances were my business.  But in the military, they are also the business of your supervisor.

Well, one day I discovered that Sergeant D_ P_ had been going through my mail to determine whether or not I had been honoring my financial obligations.  Upon discovering this information, I confronted him with it.  I told him he was violating my privacy along with Federal law, which expressly prohibits mail tampering.  He stated that he had "authority".  I asked him from where.  He stated that our Sergeant Major and Executive Officer both had authorized him to open my mail and examine my financial condition with regards to any credit accounts I might have and my ongoing car payments.  I told him that they did not have the authority within themselves to authorize him to open my mail and violate Federal law.  He disagreed with me.  He further told me that once he reported what he had found, I would face an Article 15 of the UCMJ; Non-Judicial Punishment.  Well, in accordance with that information, I did face NJP and was administratively reduced to a Lance Corporal (E-3).

Later, Sergeant P_ repeated his previous action.  He went through my mail again and this time discovered a bad check.  I was once again notified of an impending NJP.  This time however, I refused the NJP and decided to take my case to a Summary Court Martial.  I was subsequently found guilty and sentenced to 30 days in the brig with loss of rank and pay.  However, there was NO DISCHARGE WHATSOEVER awarded as a condition of my court martial disposition.

This was unacceptable to me.  I had been wanting out of the Marine Corps for over a year at this point.  Not that I disliked being a Marine.  I considered it an honor to be a United States Marine.  But due to my being introduced to my baby sister who, prior to that time, was unknown to me.  I wanted to get out and go home so I could be a part of my sister's life.  At the time I met her, I had two and a half years left in the Marine Corps.  By the time all of this was taking place, I had a year and a half left.  By taking my case to a court martial it was reasonable to figure I'd be awarded a discharge.  Besides, I had talked to my career planner and he assured me that nothing in my Service Record warranted any character of separation besides HONORABLE.

However, when they did not award a discharge, I went to my Sergeant Major and requested that I be given an outright discharge.  He laughed me right out of his office.  I requested mast to the Executive Officer; request denied.  Then to the Commanding Officer, Colonel F_; again, request denied.  Our unit was getting ready to be deployed and I was going with them.

Well, I decided to play a different card.  I went to our legal officer, Captain P_.  I told him of the mail tampering by the Sergeant on the unlawful authority of the Sergeant Major and the Executive Officer.  He did an investigation, and before all was said and done, I had to talk to an agent from the Naval Investigative Service (NIS).  Well, we were set to deploy in October of 1994.  We had already gone to do "Blue-Green water workups" and become Special Operations Capable (SOC) qualified, which is a requirement for a MEU unit to deploy.  The next thing I knew, I have my Gunnery Sergeant A_ R_, deceased, and my Operations Officer, Lieutenant Colonel C_, telling me I have "stirred up a stink".  Upon asking them what they meant, I was told that the JAG was going to issue an injunction (so to speak) against our unit from deploying until the completion of this investigation and entire matter.

I was subsequently ordered to appear before the Commanding Officer of our unit, Colonel F_.  Present at this meeting was the Executive Officer and Sergeant Major.  I was asked straightforward if I still wanted my discharge.  I replied that I did and was told they would be willing to grant my request just to make this whole mess go away.  I agreed, and was eventually transferred to 2d Surveillance, Reconnaissance & Intelligence Group (SRIG) pending administrative separation from the Marine Corps.  Well, my big day finally came.  Monday, November 14, 1994 I was told my discharge had been approved and that I would stand detached at 0800, Friday, November 18, 1994.

Tuesday, November 15, 1994, the Career Planner for 2d SRIG came to me and wanted to talk to me in his office.  He told me I was being given an Other than Honorable discharge as a result of a Pattern of Misconduct.  He further stated that it appeared, after examining my Service Record, I was being "screwed".  He told me the same thing the career planner from the 22d MEU had told me.  There was nothing in my Service Record, even with my court martial, that warranted an Other than Honorable discharge.  He added that the reason I was not awarded a discharge as a condition of my court-martial was because they knew themselves that there was no basis for an Other than Honorable discharge in my Service Record.  But, he told me he could get it corrected and I could receive an Honorable discharge.  I was going to consent because I wanted him to do so.  That is until he told me it would take a few more months.  So I decided against it.  I had waited almost two years for that day and when it finally came, I was ready to get out.  All I could think about was getting home to begin a new life with my newfound baby sister.  He subsequently told me if I ever wanted back in the Marine Corps it would take" an act of Congress to get you back in with an RE-4 discharge and a pattern of misconduct".  And he told me in conclusion, "you'll regret this decision for the rest of your life", and he was exactly right!

Gentlemen, I hold no ill will towards anyone for this matter anymore.  To be completely honest with myself, I really have only myself to blame anyways.  If I had have been patient and waited, this could have all been taken care of when I received my discharge.  I am older and wiser now and ready to close this chapter in my life and move on.  I simply request that you review my Service Record as well as my additional, supporting documentation for yourself.  I have submitted additional issues on my official Request form for your review in order to demonstrate just how I have tried to remain a productive member of the society in which I live.  Accomplishments I have made and things I have done to better myself and be an asset to my community.  I am planning to join my local VFW and Marine Corps League.  I will be able to join the VFW with my discharge from the Georgia Army National Guard.  However, I must have an Honorable discharge from the Marine Corps in order to become a member of the Marine Corps League.  I already have a sponsor for the Marine Corps League, Mr. J_ H_.  That is one reason I want my discharge upgraded to Honorable, besides the obvious fact that I cannot be proud of a discharge under Other than Honorable conditions, especially when I did nothing to deserve that character of separation.

And upon completion of your review and deliberations, I respectfully request the Board upgrade my discharge to Honorable.  I have been told that you may only be able to upgrade my discharge one level per request, in which case the upgrade would only be to "General under Honorable Conditions".  Therefore, I request that you upgrade my discharge as high as you can, and as you deem appropriate.  If in fact only one level of upgrade is possible with this request, I will again petition you at a later date for another upgrade to Honorable.

It has been seven years and four months since my discharge.  I hope you can find it in you, after careful review of my records and my supporting documentation, to grant me this upgrade.  I have felt like I have been locked away since November 18, 1994.  This Board is my only hope.

Thank you for your time and understanding in this matter.

2.  I have acquired an Associate's Degree as  Paralegal and currently work as a Paralegal. (copy of degree attached)

3.  I have been coaching youth Baseball, Basketball & Football for the Rome/Floyd Parks & Recreation since 1995; currently have a baseball team.  Contact name/number R_ H_, Athletic Director (telephone deleted)

4.  I have re-married and have a two year old son.

5.  I have been writing a column for our local newspaper (Rome News Tribune) (one article attached).  For more call P_ N_ (telephone number deleted)

6.  I am currently enlisted in the Georgia Army National Guard.  Contact name/number: SFC O_ P_, Co A, 1/108^th Armor, Rome, GA (telephone number deleted) or SFC T_ J_, R&R NCO (telephone number deleted)

Documentation

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

Degree from The School of Paraprofessional Studies of Ashworth College dated April 18, 1993
Newspaper article written by Applicant
DA Form 2-1 (4 pages)
Affidavit from Applicant dated April 1, 2002
Letter from the Applicant dated July 10, 2002
Letter from the Applicant dated July 31, 2002
Statement from Applicant, undated
Statement from Applicant, undated (4 pages)
Applicant's donor service card
Applicant's EMS card
Applicant's résumé
Voluntary youth coach statement dated July 30, 2002
Newspaper article written by the Applicant
Newspaper article written by the Applicant
Newspaper article written by the Applicant
Newspaper article written by the Applicant
Newspaper article written by the Applicant
Degree from The School of Paraprofessional Studies of Ashworth College dated April 19, 1993
Certificate of completion dated September 6, 2001
Character reference dated December 20, 2001
Character reference dated December 21, 2001
Letter of recommendation dated December 20, 2001
Letter from First Lieutenant, Executive Officer of Co A, 1/108^th Armored Battalion of the Georgia Army National Guard, Rome, Georgia dated April 30, 2002
Letter of recommendation dated May 3, 2002
Certificate of appointment of Notary Public dated August 12, 1998
Letter of recommendation dated July 16, 2002
Letter of recommendation dated May 8, 2002
Letter of recommendation dated July 15, 2002
Letter of recommendation dated July 10, 2002
Letter of recommendation dated May 15, 2002
Police record check dated April 10, 2001
Email from Applicant to NDRB dated January 22, 2003 

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		900723 - 900904	COG

Period of Service Under Review:

Date of Enlistment:  900905		Date of Discharge:  941118

Length of Service (years, months, days):

	Active:    04  02  14
	Inactive:  None

Age at Entry:  19			Years Contracted:  5

Education Level:  12			AFQT:  71

Highest Rank:  Cpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (10)			Conduct:  4.0 (10)

Military Decorations:  None

Unit/Campaign/Service Awards:  MUC, NDSM, AFEM, SASM with 1 Star, SSDR, UNM

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/INVOL DIS (BOARD) (PATTERN OF MISCONDUCT), authority:  MARCORSEPMAN Par. 6210.3.

Chronological Listing of Significant Service Events:

910121:	Counseled for deficiencies in performance and conduct.  [Disobedience of orders.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920619:	NJP for violation of UCMJ, Article 86 (2 specs):
Specification 1: Unauthorized absence from 0630 to 0640, 920603.
Specification 2: Unauthorized absence from 0730 to 0745, 920604.
Awarded forfeiture of $213.00 per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

940117:	Counseled for deficiencies in performance and conduct.  [Recent unacceptable conduct on duty, specifically unwillingness/inability to follow direction given by the section leader.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940427:	Counseled for deficiencies in performance and conduct.  [Inability to handle personal finances in a professional manner.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  Applicant chose to make a statement.

940509:	Applicant did not make a statement per the page 11 entry dated 940427.

940603:	Counseled for deficiencies in performance and conduct.  [Failure to honor contractual obligations, mainly by not returning a vehicle to appropriate civilian authorities when promised.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940817:	NJP for violation of UCMJ, Article 134 (2 specs):
Specification 1: Make and utter a worthless check in the amount of $100.00 to MWR on 940325.
Specification 2: Utter and make a worthless check in the amount of $200.00 to MWR on 940414.
Awarded restriction and extra duties for 45 days, reduction to LCpl.  Not appealed.

940902:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 91:
	Specification: Disrespectful in language toward SSgt on 940827.
	Charge II: violation of the UCMJ, Article 92:
	Specification:  Having knowledge of lawful order issued by SSgt on 940827, to get… (continuation missing from service record).
	Finding:  to Charge I and the specification thereunder, guilty.
	Sentence:  CHL for 25 days, reduction to Pvt.
	CA action 940910:  Sentence approved and ordered executed.

941118:	DD Form 214: Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

Discharge package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 941118 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 that the discharge was proper and equitable (D and E).

Issue 1.  A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a Marine.  The Applicant’s service was marred by award of nonjudicial punishment (NJP) on two occasions, one summary court-martial and adverse counseling entries on other occasions.  No other narrative reason other than a pattern of misconduct more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, falls short of that required for an honorable characterization of service.  While he may feel that his former wife’s financial irresponsibility was a factor that contributed to his actions, the record clearly reflects his disregard for the requirements of military discipline and demonstrated that he was unfit for further service.  A Summary Court-Martial cannot impose dismissal from the service and this issue does not provide a basis for relief.  The Applicant failed to provide sufficient documentation to corroborate his allegations that he was separated without proper notification, that his discharge is improper due to an investigation conducted within his command, or that his desire to separate should mitigate his characterization of service.  An upgrade would be inappropriate.  It must be noted that most Marines serve honorably and well and therefore earn honorable discharges.  In fairness to those Marines, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due.  Relief denied.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  Relief is therefore denied.

Issues 2-6.  The Applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  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. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  Evidence of continuing educational pursuits, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that may be provided to receive consideration for relief, based on post-service conduct.  The Applicant did not provide sufficient documentation to warrant an upgrade to his discharge.  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 P1900.16D), effective 27 Jun 89 until 17 Aug 95.

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; Article 91, disrespectful to a staff non-commissioned officer; Article 92, failure to obey a lawful general 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

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
INDEX:  A6730/A9223/A9225/A9305/A9241/A9221