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USMC | DRB | 2001_Marine | MD01-00332
Original file (MD01-00332.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD01-00332

Applicant’s Request
The application for discharge review, received 010123, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a personal appearance hearing discharge review before the Board in the Washington National Capital Region. The applicant did not list any representative on the DD Form 293. In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010822. 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 was young and immature at the time of discharge and am currently awaiting a response, so I may enter the U.S. Navy if approved. I feel that I have since then changed with having a family and have been a good citizen since discharge. My NJPs were only isolated offenses and my ability to serve was impaired by my youth. I feel that the punishment I received was harsh and my command abused its authority when it decided to discharge me.

2. Dear D.B. or BMCR: I am requesting my discharge to be upgraded from Other Than Honorable Conditions to General or Honorable with a Re-entry code of 1, 1A, 2A, 3A, or 3U.

Here are the conditions at the time of discharge and my current situation that I hope will be sufficient to receive a positive response. At the time of enlistment I was immature and realized that I should have handled my work situation differently. I was enduring marital hardship and family challenges. I also felt I was being treated unfairly at my unit so the culmination of those situations is the reason I agreed to a quick discharge. I did not realize that based on my type of discharge and re-entry code that I would be permanently disqualified to enlist back into the service or I would have fought to have a different discharge. The bottom line I was discharged for getting my tongue pierced and I accepted the shortest discharge to leave as soon as possible. I have since re-married and have been married for four years and have a stable family situation. I have earned my real estate license and have been an office manager. I also have since purchased a home. If given the chance with a different re-enlistment code or discharge I will be an asset to my unit, my service, and my country.

3. I feel that my medical records should also be obtained, considering they falsely accused me of suicidal attempts and that I was detained for 72 hours in the mental health unit at Camp Pendleton Naval Hospital.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copies of DD Form 214 (2)
Reference Report from Secondary Teacher
Reference Letter from Former Army Officer and West Point Graduate
Reference Letter from P__ B. S___ High School Educator
Letter from Applicant
Police Record Check Request
Probation Officer and/or Court Records Report (2pgs)
Employment Reference Letter
Reference Letter from SSgt B__ W. G__ Fontana Recruiting Station
Copy of Record of Service (3pgs)
Incident Calendar
Visitation Approval for mother visit
Copy of Special Court Martial
Copy of Notification of Reduction in Rate

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                960410 - 961006  COG

 Period of Service Under Review :
Date of Enlistment: 961007               Date of Discharge: 971205

 Length of Service (years, months, days):

         Active: 01 01 29
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 73

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.2(2)               Conduct: 4.1(2)

 Military Decorations: None

 Unit/Campaign/Service Awards: None

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 :

970416:  Counseled for deficiencies in performance and conduct. [For lying to superiors about having to pick up a parent at the airport, when in fact, my intentions and plans were to take advantage of some time off. Also, having been suspected of this infraction, when questioned about this incident, I failed to reveal the truth regarding my whereabouts and subsequently attempted to coerce a fellow Marine into corroborating a story that I had fabricated. My actions shows complete disregard for my fellow Marines and serious lack of maturity and responsibility. My lying and use of deception has placed my integrity in serious question. My actions have violated the basic principles set forth by Marines]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued
970418:  Counseled for deficiencies in performance and conduct. [Unsatisfactory judgement in that previously being advised by staff members of the private educational campus of San Marcos High School; I was not authorized on the campus, however did visit the campus. This incident was magnified when I drove to the residence of a student of the high school with at least one friend, with the intent to intimidate or harass the student. Additionally, verbal statements indicate that I displayed my Military Police Badge, which is in violation of BRIGCo standards operating procedures]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

970731:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 86: On or about 0615, 970502, without authority, failed to go to her appointed place of duty.
         Findings: to Charge I and specification 1 thereunder, guilty.
         Sentence: Forfeiture of $600.00 pay per month for 1 month, restriction for 30 days, reduction to E-1.
        
970815:  Counseled for deficiencies in performance and conduct. [I failed a vulnerability test which was conducted by the Contraband Control Office in that I allowed the laundry truck driver to exit the salleyport gate with his truck without properly inspecting the contents of the vehicle. Through the dereliction of my duties a box containing a white powdery substance and a staff member concealed in a laundry bin went undetected]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
971006:  NJP for violation of UCMJ, Article 92: Did on or about 2105, 970829 at SctyBn, MCB, CamPen, CA, failed to obey a General Order #5, "To quit post only when properly relieved" by willfully and negligently failing to perform her duties of doing a perimeter light check of the Main facility, Work Annex and the Minimum Annex by deserting the duties of her post and being caught at a party by the Brig Company Barracks Building #2498; violation of UCMJ Article 92: Dereliction in the performance of duties on 970831, at 0522, in that she negligently failed to stay awake while assuming the duty as the "First Deck Roundhouse NCO"; violation of UCMJ Article 92: Dereliction in the performance of duties on 970930, in that she negligently and willfully failed to properly record the barracks inspection report, by falsifying the results; violation of UCMJ Article 92: Failure to obey a regulation, to wit: MCO P1020.34F, par 1005.7A dtd 950127, by wrongfully having a tongue stud pierced through her tongue; violation of UCMJ Article 92: Failed to obey a lawful regulation, to wit: MCO P1020.34F, par 1005.7A dtd 950127 by being seen removing a tongue ring from her mouth after receiving orders to report to the BrigCo's XO'a office; violation of UCMJ, Article 107: False official statement on 970904, with the intent to deceive, to wit: "They (medical) could not take out the stud from my tongue because it was still tender and they had to wait until the hole close up" or words to that effect. . .
         Award: Forfeiture of $450.00 per month for 2 months, restriction for 60 days. Not appealed.
971024:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
971024:          Applicant advised of her rights and having elected to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right, in lieu of a hearing, I have included written statements in rebuttal to this proposed separation and to obtain copies of the documents used to support the basis for the separation.

971106:  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 conviction by Special Court-Martial held on 970731, NJP on 971007, and numerous Page 11 counseling entries.

971124:  GCMCA [Commanding General, Marine Corp Base, Camp Pendleton] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

971209:  SJA review determined the case sufficient in law and fact.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 971205 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. The Board found that the applicant’s age, education level, and test scores qualified her for enlistment. While she may feel that her immaturity was a factor that contributed to her actions, the record clearly reflects her willful disregard for the requirements of military discipline and demonstrated that she was unfit for further service. The applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her willful disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an upgrade to her characterization of service. The applicant, after consulting with legal counsel, waived her right to contest the characterization of service at an administrative hearing while being processed for discharge in 1997. Under Other Than Honorable conditions most clearly describes the applicant’s characterization of service. The record is devoid of evidence that the applicant was not responsible for her conduct or that she should not be held accountable for her actions. The separation proceedings were reviewed and found sufficient in law and fact on 971209. There is no evidence that the command abused its authority when it initiated separation proceedings. Relief denied.

Issue 2. The applicant’s discharge characterization accurately reflects her service to her country. The discharge was proper and equitable. Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice 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, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct. The applicant did not provide sufficient documentation to warrant an upgrade to her discharge. She is reminded that she remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of her discharge. The applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Legal representation at a personal appearance hearing is highly recommended but not required. Relief denied.

The applicant stated she was enduring hardships and challenges during the time of her enlistment. The NDRB recognizes that serving in the Marine Corps is very 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 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. While the NDRB respects the fact that the applicant tried, her service is equitably characterized as being performed under other than honorable conditions. Relief is not warranted.
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 branch 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 Commander, Navy Personnel, Pers 814, 5720 Integrity Drive, Millington, TN 38055, and the Commandant, United States Marine Corps, Code MMPE-5, Washington, DC 20380-3001. 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.

Issue 3. There is no evidence that medical treatment received by the applicant contributed to her misconduct or that her command used her history of medical treatment in an inequitable manner. No mention of the applicant’s medical history is made in the official record of the disciplinary actions taken against the applicant or of the separation proceedings that led to her discharge. Relief on this issue is denied.

 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, Article 86, failure to go to appointed place of duty; Article 92, failure to obey regulations; and Article 107, false official statement.
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 “ afls10.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      


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