Author: CAP
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Docket No. MD06-00684

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

FOR OFFICIAL USE ONLY

ex-Pvt, USMC
Docket No. MD06-00684

Applicant’s Request

The application for discharge review was received on 20060424.  The Applicant requests the Discharge 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20070209.  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 by reason of misconduct due to a pattern of misconduct.

The NDRB did note administrative error(s) on the original DD Form 214.  Block 12a, Date Entered AD This Period, should read:  “94 07 06;” Block 12, Total Prior Inactive Service, should read:  “00 08 13;” Block 24, Character of Service, should read:  “UNDER OTHER THAN HONORABLE CONDITIONS;” Block 28, Narrative Reason for Separation, should read: “MISCONDUCT;” and Block 29, Dates of Time Lost During This Period, should read:  “(3) 19950203-19950206, (3) 19950317-19950320.”  The Commandant, Headquarters USMC, Quantico, VA, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

PART I - ISSUES AND DOCUMENTATION

Decisional Issue

Equity:  In service personal issues led to misconduct
 Post-service accomplishments

Documentation

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

Applicant’s DD Form 214 (Member 4)
Statement from Applicant, dated April 6, 2006 (4 pages)
Thank you Certificate from MCI, undated
Letter to Applicant from MCI, dated February 2004
January Ovation Certificate to Applicant
Top Winner Certificate
Small Business Certificate awarded to Applicant, dated February 16, 2001
Small Business Certificate awarded to Applicant, dated March 2001
Certificate of Completion of MCI’s CableNet program, dated August 17, 2004
Director’s All-Star Winner Certificate, dated October 2001
Outstanding Performance Certificate for Supreme Supervisor Leader for May
Outstanding Performance Certificate for Supreme Promotee Leader for April
MCIWORLDCOM Community Connections certificate for outstanding contributions, dated March 3, 2001
Outstanding Performance Certificate, dated August 20, 2003

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19931023 - 19940705	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19940706		Date of Discharge:  19971024

Length of Service (years, months, days):

Active:    03  03  19  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  6 days
	Confinement:		  None

Age at Entry:  17 (Parental Consent)

Years Contracted:  4

Education Level:  12				AFQT:  38

Highest Rank:  LCpl				MOS:  3381 (Food Service Specialist)

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.6 (8)				Conduct:  3.3 (8)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Rifle Badge Marksman//National Defense Service Medal//Sea Service Deployment Ribbon//Armed Forces Service Medal//

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:

941205:	Counseling:  Advised of deficiencies in performance and conduct (Failure to attend scheduled formations and failure to check out with proper authority).  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950203:	Applicant to unauthorized absence at 1815.

950206:	Applicant from unauthorized absence at 1230 (3 days/surrendered).

950208:	NJP for violation of UCMJ, Article 128:  Unlawfully struck Pvt O_ on the arm with his fist and his foot.
Violation of UCMJ, Article 86: Unauthorized absence from 1815, 950203-1230, 950206.
	Award:  Forfeiture of $400.00 per month for 2 months, restriction and extra duty for 30 days.  Forfeiture for 1 month, restriction and extra duty for 30 days suspended for 6 months.  Not appealed.

950208:	Counseling:  Advised of deficiencies in performance and conduct (Assault on Pvt O_ by punching and kicking him in the arm on 950108 and unauthorized absence from 1815, 950203 to 1230, 950206).  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950317:	Applicant to unauthorized absence at 0730.

950320:	Applicant from unauthorized absence at 0720 (3 days/surrendered).

950329:	NJP for violation of UCMJ, Article 86:  Unauthorized absence from 0730, 950317 to 0720, 950320.
	Award:  Forfeiture of $478.00 per month for 1 month, correctional custody for 30 days.  Forfeiture suspended for 6 months.  Not appealed.

950728:	Counseling:  Advised of deficiencies in performance and conduct (Uttering and passing worthless checks).  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950830:	NJP for violation of UCMJ, Article 123a (8 specs):  With intent to defraud, wrote 8 checks to MWR, then knowing he did not have sufficient funds for payment.
	Award:  Forfeiture of $427.00 per month for 2 months, correctional custody for 30 days, reduction to E-1.  Appealed 950831.  Appeal denied 950906.

970725:	Counseling:  Advised of deficiencies in performance and conduct (Failure to obey a lawful order when told to send his wife a child support payment on 970715.  Instructed on numerous occasions that he is to send his wife half of BAQ each payday).  Necessary corrective actions explained, sources of assistance provided, disciplinary warning issued.  

970725:	Counseling:  Advised of deficiencies in performance and conduct (SNM wore an unserviceable uniform to work on 970723.  SNM was told on 970723 to change in to a clean uniform, instead SNM came to work in the same dirty uniform.  SNM understands that he receives a clothing allowance for maintenance of uniforms).  Necessary corrective actions explained, sources of assistance provided, disciplinary warning issued.

970828:	NJP for violation of UCMJ, Article 86:
	Specification 1: On or about 0820, 970801, absent from appointed place of duty until 0950, 970801.
	Specification 2: On or about 0400, 970804 from appointed place of duty until 0715, 970804.
Violation of UCMJ, Article 107: On or about 970804, make a false official statement to Cpl A_, to wit:  stating that SSgt L_ told him to report at 0730, 970804.
	Award:  Forfeiture of $505.00 per month for 2 months, restriction for 45 days, reduction to E-2.  Appealed 970908.  Appeal denied 970910.

970929:	NJP for violation of UCMJ, Article 86: UA from a BN muster at 2145, 970922.
Violation of UCMJ, Article 92 (8 specifications): Failure to obey order, regulations, NFI.
Violation of UCMJ, Article 95: On or about 2245, 970922 resist being apprehended by the Military Police.
Violation of UCMJ, Article 111: On or about 2127, 970922 physically control a POV in a reckless manner.
Violation of UCMJ, Article 117: On or about 2030, 970922, wrongfully use words and gestures, to wit:  “I’ve got something for your ass” while reaching under the seat as if for a weapon.
Violation of UCMJ, Article 128: On or about 2030, 970922, slam SSgt F_’s hand into the steering column of LCpl S_ (Applicant)’s POV, when SSgt F_ attempted to remove the key for the ignition.
Violation of UCMJ, Article 134 (3 specifications), NFI.
	Award:  Forfeiture of $450.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  Not appealed.

971003:	Applicant notified of intended recommendation for discharge as under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  Applicant informed the least favorable character of service possible was as under other than honorable conditions

971003:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

971006:	Commanding Officer, Headquarters Battalion, 2d Marine Division, recommended Applicant’s discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct.

971015:	SJA review determined the case sufficient in law and fact.

971020:	GCMCA, Commanding General, 2d Marine Division, II Marine Expeditionary Force, 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 19971024 by reason of misconduct due to a pattern of misconduct (A) with a service characterization of under other than honorable conditions.  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 (B and C).  

When the service of a member of the U.S. 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 4 retention warnings and 5 nonjudicial punishment proceedings for violations of Articles 86, 92, 95, 107, 111, 117, 123a, 128, and 134 of the UCMJ.  The NDRB advises the Applicant that certain serious offenses warrant separation from the Marine Corps in order to maintain proper order and discipline. Violations of Articles 92, 95, 107, 111, 123a, and 128 are considered serious offenses for which a punitive discharge is authorized if adjudged at a special or general 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 his disciplinary problems were the result of stress caused by personal issues in his life.  The NDRB recognizes that serving in the U.S. Marine Corps is challenging.  Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country.  It must be noted that most members of the Marine Corps serve honorably and therefore earn their honorable discharges.  In fairness to those members of the Marine Corps, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due.  The NDRB found that the Applicant's service was equitably characterized.  Relief denied.

Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the Applicant’s desire to re-enlist is not a basis upon which the NDRB can grant relief.  Reenlistment policy of the Marine Corps 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.  

The Applicant’s discharge characterization accurately reflects his service to this country.  Normally, to permit relief, a procedural impropriety or inequity must have existed during the period of enlistment in question.  No impropriety or inequity occurred 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 records, 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 can be provided to receive consideration for relief based on post-service conduct.  The Applicant submitted documentation to support to support his claims of post-service employment; however, after a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not sufficient to mitigate the conduct which precipitated the discharge.  Relief not warranted.

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.  The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this 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 31 Jan 97 until 31 Aug 01. 

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 1332.28 and other Decisional Documents by going online at “http://Boards.law.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:

		Secretary of the Navy 	Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023