Author: CAP
Last saved by: shirley.robertson
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Docket No. MD04-00262

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

ex-Pvt, USMC
Docket No. MD04-00262

Applicant’s Request

The application for discharge review was received on 20031121.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests 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 20040812.  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-Pattern of misconduct (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “Review Board:

The issue of requesting a change of discharge; is due-to the-Re Entry Code that does not allow me the opportunity to re enlist into the military.  Please see attached letter.

2.  “Review Board:

I am sending you this letter of reconsideration pertaining to my Re-Entry Code of RE-4.  This Re-Entry Code was issued at the time if discharge, which dates as of 931025.  I, J_ C_ S_ (Applicant), was discharged for Pattern of Misconduct and received an Under Other Than Honorable Discharge.  The events that perceived this discharge are hereby discussed.
I entered the United States Marine Corps in 930402.  Between the time of entry and 930224, my tour of duty was within the standards and proud tradition of the United States Marine Corps.  As of 930214 and after, I began to associate myself with the wrong individuals.  I also began to make irresponsible decisions which led to several disciplinary actions in accordance with the UCMJ.  During this time of my short career, I must say that immaturity and pure ignorance, invaded my every decision in my daily life.
On 930924, nearly seven months later, this all came to a cease.  I had managed to wash away and totally destroy a fairly decent service record.  At the time of disciplinary action taken against me, it did bother me, unfortunately not enough.  I was young and careless and thought that I could get out of the service and just start a new life.  For three years I got absolutely no where in life.  I didn’t get into anything illegal, but never succeeded at anything.
It was not till three years later, that this started to eat away at me.  In 1996, I wanted to re-enter the USMC, and was told because of the re-entry code, I could not enter any branch of service.  Since 1996, that has been the most humiliating and haunting statement I have ever experienced.  I had finally realized the truth.  I had not been loyal to the USMC, God, my country or to myself.  This is what hurt the most.  But I decided not to let this slow me down.  At this point, I knew that I had to perform with actions and not words.
I decided to take control of my life.  In the last seven years, these are my accomplishments.  I enrolled in college at Jefferson State Community College to pursue an Associate Science Degree in Criminal Justice.  I am currently still attending college.  I have been a member of Hepzibah Baptist Church for the last seven years.  I have been a Sunday School teacher and Youth Leader for the last three years.  My field of employment for the last three years is law enforcement.  I was a Correctional Officer for the State of Alabama for the first two years, 2000-2002.  During this two years, I was a member of C.E.R.T. (Corrections Emergency Response Team).  I was also one of six Police Snipers for A.D.O.C.  I left the State 15 months ago to become a Detention Officer for a well known municipality here in Alabama, for a much higher income and still have retirement with the State.  I have been married for the last 2 1/2 years and have no children.  My wife supports me in my decision to pursue this, and encourages me.
However, I still have the same problem with everything that is going well in my success.  My past still haunts me everyday with the fact that I have this blemishing period in my life.  This is an obstacle that I must overcome and face in my life.  It has taken several years to find the courage to ask the board for this reconsideration.  When I joined the United States Marine Corps, I was proud of myself.  At age 19, I had made a decision to serve my country and be a proud United States Marine.  As I stated earlier, I made a few bad choices and it cost me and deprived me of my desire to be a proud United States Marine.  Now at 32, I am stepping up to the plate once again to ask for a second chance to prove that I am a responsible person.
I have spoken to a Navel Recruiter and he is aware of my sending this request to you.  He has advised me, that in the event that I am able to get this overturned, that I will be able to possibly join the Naval Reserves as Military Police.
It would be an honor to have the board’s reconsideration to over turn my Re-Entry Code so that I may be able to re-establish my name with the United States Navy, United States Armed Forces.  To prove to God, my family, the United States Navy, the Review Board, and most importantly, to myself, that I am now a man of honor, loyalty and courage and would be a great asset to my country and the United States Navy.
I thank the board for their time and consideration in this matter.  And apologize for not being able to appear in person before the review panel.  I pray, that you will let me prove that my immature past does not overshadow my success in the present or the future.

Sincerely,

J_ C_ S_ (Applicant)”

Documentation

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

Job/character reference, dated November 13, 2003
Certificate of completion, dated May 3, 2001
Certificate of achievement, dated May 3, 2001
Certificate of completion, dated April 8-12, 2002
Certificate of Award, dated April 12, 2001
Certificate from Alabama State Defense Force, 2^nd Infantry Brigade, dated November 23, 2002
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)		900131 – 900411	ELS
		   USMCR(J)			910226 - 920401	COG

Period of Service Under Review:

Date of Enlistment:  920402		Date of Discharge:  931025

Length of Service (years, months, days):

	Active:    02  06  24
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  10			AFQT:  55

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.5 (6)			Conduct:  4.4 (6)

Military Decorations:  None

Unit/Campaign/Service Awards:  Letter of Appreciation, MM, NDSM, SSDR

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct-Pattern of misconduct (administrative discharge board required but waived), authority:  MARCORSEPMAN Par. 6210.3.

Chronological Listing of Significant Service Events:

930514:	NJP for violation of UCMJ, Article 92 (2 specs):
Specification: Disobey an order or regulation, to wit: BO 1020.8T, paragraph 1 (a), by wearing an earring.
Specification 2: Disobey an order or regulation, to wit: failed to surrender his I.D. card, when asked to on 2330, 930507.
Awarded forfeiture of $221.00 per month for 1 month, correctional custody for 7 days.  Not appealed.

930601:	Applicant to ARD.

930617:	Counseled for deficiencies in performance and conduct.  [Refusal to participate in a rehabilitation program.  Specifically, Level III treatment for alcohol dependence.]

930618:	NJP for violation of UCMJ, Article 86:
Specification: Absent himself on 0530, 930616-0245, 930617.
Violation of UCMJ, Article 92:
Specification: Violate a order or regulation on 1140, 930616, to wit: BnO 1050.4S by exceeding the overnight liberty boundaries.
Awarded forfeiture of $234.00 per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

930720:	Counseled for deficiencies in performance and conduct.  [Insufficient funds for checks #311 on 930510, #377 on 930603, and for violations of Article 86 and 92 on 930514 and nonpunitive letter of caution 930224 and refusal of Level III treatment on 930617.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

930917:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 107:
	Specification: False statement about drinking problem.
	Charge II: violation of the UCMJ, Article 115:
	Specification: Avoiding service as an enlisted person, by claiming to have a drinking problem.
	Finding: to Charge I and the specification thereunder, not guilty.  To Charge II and the specification thereunder, guilty.
	Sentence: Confinement for 30 days, reduction to Pvt.
	CA action 930924: Sentence approved and ordered executed.

931005:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

931006:	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.

931007:	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 past record of misconduct.  

931020:	SJA review determined the case sufficient in law and fact.

931022:	GCMCA [Commanding General, 2d Force Service Support Group] 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 19931025 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).

Issues 1.  Concerning a change in reenlistment code, 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 Navy or 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.  

Issue 2.  When the service of a member of the Marine Corps has been honest and faithful, it is appropriate to characterize that service as honorable.  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 nonjudicial punishment proceedings for four violations of the UCMJ to include violations of Article 86, unauthorized absence, and Article 92, failure to obey an order.  The Applicant was also found guilty of violating Article 115 at 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 U.S. Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant contends that his problems in the Marine Corps can be attributed to his "immaturity and ignorance."  While he may feel that his immaturity was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

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.  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.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that his discharge was appropriate and that his evidence of post-service conduct was found not to mitigate the conduct for which he was discharged.  Relief denied.

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 P1900.16D), 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 [ e.g., Article 86, unauthorized absence for more than 30 days].

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.