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USMC | DRB | 2005_Marine | MD0500731
Original file (MD0500731.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD05-00731

Applicant’s Request
The application for discharge review was received on 20050322. 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. Subsequent to the application, the Applicant obtained representation by the Disabled American Veterans.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050811. 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/INVOL DIS (BOARD WAIVED) (PATTERN OF MISCONDUCT), authority: MARCORSEPMAN Par. 6210.3.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

 “Dear Members of the Review Board,

I am writing in the hopes that you will consider upgrading my discharge status, which I received from the U.S. Marine Corps in November of 1994.

In November of 1992, I entered the service upon the advice of my recruiter, a man I fully trusted and respected. While there, I was an exemplary Marine, as I am sure my record as well my peers and superiors at the time would attest to. I gave my all in every aspect of service and dedication. In addition, I volunteered to participate in platoon competitions and played on the company’s basketball and flag football teams. I was an expert rifleman and a marksman with the pistol. At this time, I had complete faith that I had made the right decision to join the Marines and hoped for the chance to serve my country to the best of my abilities. I intended for my dedication to the Marine Corps to last a lifetime.

All of that changed about one year into serving duty command Yorktown NWS VA. Rumors that a new company commander would arrive came true, and with him came sweeping changes involving the operation of the company, guard rotation on and off duty, and so forth. The overall morale of my fellow Marines suffered greatly, as did mine. It was also around this time that I began to realize that the responsibilities I had anticipated were not in line with what I had been told by my recruiter. I began to lose my motivation and slipped into a state of depression.

I tried speaking to my peers and to the administration and office personnel about the frustration I was feeling but could find no assistance. Eventually, a Sergeant in the administrative office suggested to me that if I was feeling frustrated to the point of wanting out, there was an easy solution. I had to go AWOL, possibly twice, but that I would subsequently receive an administrative discharge. In the state of mind I was in at the time, I could not possibly comprehend the ramifications that this would cause down the road.

The first time I went AWOL, I was gone for 28 days. Upon my return, I spent 30 days in the brig. At the end of those thirty days I was released and, following the advice the Sergeant had given me (and wrongly assuming this was my only option), I went AWOL again. Eighteen days later, I turned myself in at a reserve unit in North Versailles, PA, where I was presented with a bus ticket back to Yorktown, VA, which I used to return and serve another 30 days in the brig. On the 29 th day, I suffered a torn MCL of the right knee. It was then that I returned to NWS and was informed that I would not be discharged. The company GYSGT called me into his office and counseled me. He told me, off the record, that to receive a non-punitive discharge I would simply have to receive three UCMJ’s. Miss morning formation, he suggested, and that would be the third UCM.J, which would allow me a non-punitive discharge.

They say that hindsight is 20/20, and looking back it is easy to see the severity of the mistakes I made eleven years ago. At the time, however, I could see no further than my own confusion and frustration. I wish that I had had a mentor who could have guided me through a difficult time and helped me to make better, more responsible decisions. Ultimately, however, I fully admit that the responsibility rested on my shoulders only. I deeply regret the decisions I made, and if I had it to do over again, I would have done everything in my power to seek the guidance that I so desperately needed as a young, confused Marine in order to make more responsible choices.

My actions were not made out of any ill will or any deliberate intent to shirk my responsibilities. I was a young man and admittedly in a poor mental and emotional state who felt he had no other options. I am now a more mature man, a proud man, but one who is willing to admit to past mistakes. As a new father, it is now my responsibility to do everything in my power to provide the best life for my family. I would like to reiterate my regret and ask the board to consider an upgrade to an Honorable discharge in light of the amount of time that has passed, while also bearing in mind my exemplary service while still enlisted. If granted, I would also like to be considered as a potential enlistee with the National Reserves.

I thank you for taking the time to consider my situation, and trust that you will make a fair and just decision considering the facts presented.

Sincerely,

R_ L. O_ Jr. (Applicant)”


Additional issues submitted by Applicant’s counsel/representative (Disabled American Veterans):

“Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current Under Other Than Honorable Conditions discharge to that of Honorable.

The FSM served on active service from February 11, 1993 to October 7, 1994 at which time he was discharged due to misconduct- pattern of misconduct.

The FSM states that he feels that he served his country with dedication, and that the problems started to arise when there was a change in command. The new incoming command restructured and made changes that the FSM had an inability to adapt too. When he sought assistance to overcome these issues he was finally provided counsel by the Non-Commissioned Officers of the Command, albeit inappropriate. The FSM followed these instructions oblivious to the ramifications they would cause / create in the future. This reflects an image of an individual in a poor emotional state who trusted the advice he was given by his superiors, and lacked the maturity to sort out the inappropriateness and seek guidance elsewhere.

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174D. When considering the premises of equitable relief we as the representative ask that consideration be given to a change of discharge to General Under Honorable Conditions, as this style of discharge would provide relief and at the same instance not absolve the FSM from his past actions.

 We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the applicant.”


Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
List of four persons as character reference
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                910919 - 920501  ELS
                  USMCR(J)                 920516 - 921129  COG

 Period of Service Under Review :
Date of Enlistment: 921130               Date of Discharge: 941007

 Length of Service (years, months, days):

         Active: 01 07 07
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 48/51

 Highest Rank: PFC                          MOS: 0311

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.2 (7)                       Conduct: 3.2 (7)

 Military Decorations: None

 Unit/Campaign/Service Awards: National Defense Service Medal, Expert Rifle Badge, Marksman Pistol Badge

Days of Unauthorized Absence: 44

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

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

 Chronological Listing of Significant Service Events :

940404:  Applicant to unauthorized absence at 0545 on this date.

940503:  Applicant from unauthorized absence at 1800 on this date (29 days/
 surrendered).
940510:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86:
         Specification: Unauthorized absence from 940404 to 940503.
          Finding: to Charge I and the specification thereunder, guilty.
          Sentence: Forfeiture of $416.00, confinement for 30 days, reduced to E-1.
         CA action 940510: Sentence approved and ordered executed.

 940510:  Applicant to confinement.

940603:  Applicant from confinement.

 940606:  Applicant to unauthorized absence at 0645 on this date.

 940621:  Applicant from unauthorized absence at 1030 on this date (15 days/ surrendered).
940624:  Applicant to confinement.

940628:  Applicant from confinement.

940711:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86:
         Specification: Unauthorized absence from 940606 to 940621.
          Finding: to Charge I and the specification thereunder, guilty.
          Sentence: Forfeiture of $554.00, confinement for 30 days.
         CA action 940711: Sentence approved and ordered executed.

940711:  Applicant to confinement.

940713:  Counseled for deficiencies in performance and conduct (frequent involvement with military authorities). Necessary corrective actions explained and sources of assistance provided. Applicant advised that he was being recommended for administrative separation due to a pattern of misconduct.
940731:  Applicant from confinement.

 940809:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0615
 to 1500 on 940803 from appointed place of duty.
 Awarded forfeiture of $416.00 per month for 1 month, restriction and extra duties for 30 days. Not appealed.
940816:  Applicant notified of intended recommendation for discharge by reason of misconduct due to a pattern of misconduct. Advised that the least favorable characterization of service he may receive is under other than honorable conditions.
940817:  Applicant advised of rights and having elected not to consult with qualified counsel, elected to waive all rights.

940817:  Commanding Officer, Marine Corps Security Force Company, Naval Weapons Station, Yorktown, VA recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct. The factual basis for this recommendation was the Applicant's conviction at two summary courts-martial and one nonjudicial punishment. Commanding Officer's comments: "These numerous offenses have been intentionally committed to demonstrate Private O_'s complete unwillingness to continue he [sic] service in the Marine Corps and follow the orders of his superiors. Private O_ has been permanently decertified from the Personnel Reliability Program and as a result was issued PCS orders. These orders were placed in abeyance due to our desire not to pass on a Marine with such a poor disciplinary record to the FMF. This Marine has proven to be recalcitrant and deliberate in his efforts to violate the Uniform Code of Military Justice and receive a discharge from the service. His prolonged presence constitutes a continued risk to the good order and discipline of this command."

940913:  SJA review determined the case sufficient in law and fact.

940923:  GCMCA (Commander, U.S. Marine Corps Forces, Atlantic) 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 19941007 under other than honorable conditions for misconduct due to a pattern of misconduct (A). 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).

 The Applicant and his counsel contend that his inability to adapt to a new command climate, as well as his immaturity at the time, led to the Applicant's poor mental and emotional state, and subsequent bad decision-making, during the period leading up to his discharge. While the Applicant and his counsel feel that these factors should mitigate his misconduct, the Board found that the record reflects the Applicant's willful, negligent, and repeated absence from his command without authorization. The Applicant's misconduct is clearly documented in his service record by the following:
o        a guilty finding at his summary court-martial on 19 940510 for violation of UCMJ Article 86 Unauthorized absence for 29 days;
o        a guilty finding at his summary court-martial on 19 940711 for violation of UCMJ Article 86 Unauthorized absence for 15 days;
o        a formal counseling on 19940713 for continued deficiencies in performance and conduct; and
o        the award of nonjudicial punishment (NJP) on 19 940809 for violation of UCMJ Article 86 Unauthorized absence, place of duty.
While the Applicant may feel that there were mitigating factors to his misconduct, there is no evidence in the record to suggest that the Applicant was not responsible for that misconduct or that he should not be held accountable for his actions. Relief on this basis is therefore denied.

The Applicant and his counsel contend that the discharge was inequitable as he was following the guidance, albeit inappropriate, provided to him by more senior Marines.
T here is nothing in the Applicant's service or medical records to indicate that he did not understand the difference between right and wrong. In fact, his stated intent to receive a non-punitive discharge in order to end his service in the Marine Corps underscores the Applicant's understanding of what was required of him under the UCMJ. As such, any contention by the Applicant or his counsel that his misconduct was the result of guidance from senior Marines is without merit. Relief on this basis is denied.

The Applicant and his counsel further contend that the discharge was inequitable as the Applicant did not understand the ramifications of his actions or the resulting characteriza-tion of service under other than honorable conditions. The Applicant is advised that the characterization of a Marine's discharge is based upon the conduct of that Marine, as documented in his service record, and not upon his understanding of the consequences.
The Applicant's misconduct is clearly documented in his service record, as described above. Further, the record shows that the Applicant, on 19940816, when officially notified of his command's intent to administratively separate him, was advised of the rights afforded to him as part of his processing for administrative separation and, on 19940817, elected to waive those rights, including the right to consult with qualified counsel and the right to an administrative discharge board. All due process was afforded the Applicant. Accordingly, relief on this basis is denied.

 The following is provided for the edification of the Applicant. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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 Naval service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided any post-service documentation for the Board to consider. Relief on this basis is denied.

The Applicant states that he wishes to reenlist in the a Reserve component. The Applicant is advised that the NDRB has no jurisdiction over reenlistment into the Marine Corps or any other branch of service. An unfavorable characterization of service and/or reenlistment code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

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 other evidence related to his discharge at that time. 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. 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 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 “ 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

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