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USMC | DRB | 2005_Marine | MD0501119
Original file (MD0501119.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-PFC, USMC
Docket No. MD05-01119

Applicant’s Request
The application for discharge review was received on 20050622. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions). 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 20051221. 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 the commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the attached letter to the Board:

 “To whom it may concern:

My name is A_ F. L_ (Applicant) and I served proudly in the Marine Corps during the period between 20010211 and 20020814. My service in the Marine Corps was exemplary through training and my first year at Camp Lejeune as evidenced by accompanying awards and letters of appreciation. However, during this period I befell great personal issues exacerbated by my young age, lack of experience, and especially the abundance of readily available alcohol, and I made a few mistakes. I found myself in a hole I knew not how to escape. From personal experience I now know that, once a certain light is shed upon your character, it becomes increasingly difficult to escape the watchful and disdainful gaze of your peers and your inner guilt. If only I knew then what I know now, I am positive that things would have ended much differently.

The purpose of this letter is to humbly request a change in my reentry code from the given RE-4, to one that would allow me to serve once again my country and fellow Marines, and to make right what I promised while swearing an oath in 2001. I wish to rejoin active duty or at least active reserve, wherever I am most needed.

What evidence I have to support my request is certainly over shadowed by my past actions, yet I am certain that the actions taken against me were spiteful and unnecessary. Misconduct is an extremely vague reason for separation and is used to avoid any solid reason for discharge.

I made a mistake when I received a DUI in California. However I was not legally intoxicated but I was underage. Upon returning, I was asked repeatedly by the Commanding Officer in Albuquerque, NM, what I was to do upon dishonorable discharge in the Marine Corps. I was told that Marines never recover from incidents as such. Being barely 19 and a junior Marine, I believed what I heard and was devastated. However I continued on with some success for some time before (as stated previously), personal problems arose, in which I found refuge with other Marines who drank and provided alcohol. Therein lies my second mistake in which ultimately brought my demise as a Marine. Plainly stated, Marines who make mistakes are never the same, they are not treated the same, but are treated with scornful looks and poor duties. This is coupled with the ability for other Marines to push ones limits and are allowed, often even encouraged, by the higher ranks. Taunting cadence chants and mockery during formations by corporals and platoon sergeants became commonplace, and focused in my direction. Sweeping the Gunnery Sergeant’s parking spot became my permanent duty, shortly followed by sweeping the forest floor during periods of time when other companies were scheduled to use for training, with the intention to humiliate me. I found myself the target of Corporals who thought it fun to show off their power, while other Marines watched. I regret that I failed to handle some of the instances that occurred in the best way. I found counsel in Alcohol Treatment (which I successfully completed), and with Brig Company First Sergeant R_, who repeatedly assured me that I would shortly be placed back on duty and that I wouldn’t be kicked out of the Marine Corps. He told me to do the best I could under existing circumstances and that recovery was possible, I believed him. Shortly after I was out processed and discharged.
I was wrong in many of my actions during my Marine Corps career and for that I am sorry. Ultimately what I did was to myself, and was a result of being a dumb kid. However I committed no serious offenses, I am not a security threat of any kind, and I am a willing and able candidate for active duty. I simply didn’t know any better, but I have learned many life lessons, and wish to offer my apology, and make amends. I hold no grudges nor have I ever spoken of the Corps in a disdainful or disrespectful manner. I look upon my term of duty, although short and rough, as a great honor, and look forward to getting back to work.

Sincerely:       A_ F. L_ (Applicant)”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 4)
Applicant’s DD Form 214 (Member 1)
Character Reference ltr from M_ R. S_, CEO, SpinnNet, dtd November 10, 2004
Character Reference ltr from J_ J. L_, General Sales Manager, dtd December 13, 2004
Character Reference ltr from A_ K_, MCSE, dtd December 29, 2003 (unsigned)
DD Form 216 MC dated May 2, 2001
Certificate for Superior Physical Fitness, dtd October 3, 2001
Ltr of Appreciation from C. R. W_, dtd August 01, 2001
Certificate of Completion of Marine Combat Training June 22, 2001
Certificate of Completion for Intensive Outpatient Treatment, dtd June 21, 2002
Certificate of Completion for Principles of Instruction for the Marine NCO, dtd February 25, 2002
Ltr from Commanding Officer, Brig Co, H&S Battalion, MCB CLNC, dtd June 11, 2002 (2 pages)
Treatment Summary, Alcohol Treatment Department, dtd June 21, 2002
Warrant for Arrest from the State of North Carolina, dtd March 27, 2002 (Hill Top Grocery)
Warrant for Arrest from the State of North Carolina, dtd March 27, 2002 (Hampstead Country Store)
Applicant’s Chronological Record (1070)
Ltr from Commander, Marine Corps Base, dtd Aug 13, 2002
Applicant’s Offenses and Punishments (NAVMC 118-12)
Applicant’s Administrative Remarks (Page 11), dtd April 12, 2002
Separation/Travel Certificate, dtd July 14, 2002
7 pages from the Applicant’s medical record
Ltr from Commanding Officer, Headquarters and Support Battalion, MCB CLNC, dtd Aug 01, 2002 (2 pages)
Ltr from Commanding Officer, Headquarters and Support Battalion, MCB CLNC, dtd June 27, 2002 (3 pages)
Purpose and Scope of the Navy Discharge Review Board and The Board For The Correction of Naval Records (5 pages)
Acknowledgement of Rights from Applicant, dtd July 1, 2002 (3 pages)
Enlistment/Reenlistment Document, dtd February 12, 2001 (3 pages)
Waiver of Administrative Discharge Board, dtd July 30, 2002
Incident/Investigation Reports with supplemental report, dtd March 27, 2002 (5 pages)
Voluntary Statement, dtd March 27, 2002 (3 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    20010104 – 20010211      COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20010212             Date of Discharge: 20020815

 Length of Service (years, months, days):

 Active: 01 05 20
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 14 days
         Confinement:              None

 Age at Entry: 18 (Parental Consent)

 Years Contracted: 4

Education Level: 12                                 AFQT: 72

 Highest Rank: LCPL                                  MOS: 5831

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.9 (5)              Conduct: 3.8 (5)

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): National Defense Service Medal, Rifle Expert, Certificate of Appreciation (3).


Character, Narrative Reason, and Authority of Discharge (at time of issuance):
UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.6.

 Chronological Listing of Significant Service Events :

020315:  NJP for violation of UCMJ, Article 86:
 Specification: Unauthorized absence from 0800, 020225 through 0800 020226.
          Award: Restriction and extra duty for 7 days. Not appealed.

020327:  Warrant for Applicant’s arrest issued by State of North Carolina, Pender County for attempted breaking and entering and injury to real property at Hill Top Grocery in Hampstead, N.C., on 020327 with the intent to commit larceny.

         Warrant for Applicant’s arrest issued by State of North Carolina, Pender County for attempted breaking and entering and injury to real property at Hampstead County Store in Hampstead, N.C., on 020327 with the intent to commit larceny.

020412:  Counseling: Advised of deficiencies in performance and conduct (Alcohol- related incident (ARI) on 24, February 2002. Specifically, traffic citation issued for driving while under the influence of alcohol (DUI .08)), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.

020508:  NJP for violations of UCMJ.     
Article 86:
Specification 1: UA/AWOL from HqSptBn, MCB, Camp Lejeune from 27 Mar 02 to 9 April 02.
Specification 2: At 0600, 30 April 02, fail to go to his appointed place of duty, to wit: Drill Practice at Brig Co.
Article 91:
Specification 1: On 25 April 02, at Brig Co, disobeyed a lawful order by Sgt T_, DNCO, to return to his room.
Specification 2: Was, on 25 April 02, at Brig Co, disrespectful in language towards Sgt T_ and GySgt S_.
Article 92: Specification: On 25 April 02, violation Bn order P11101.6B dtd 7 Jul 98, by possessing a knife in the Brig Co Bks area.
Article 134: Specification: Was, on 25 April 02, at Brig Co Bks, disorderly.
         Award: Forfeiture of $619.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. Forfeiture of pay per month for 1 month suspended for a period of 6 months. Not appealed.

020523:  NJP punishment suspended on 020508 vacated.

020603:  Applicant admitted to intensive outpatient treatment at Alcohol Treatment Department, Naval Hospital, Camp Lejeune.

020611:  Commanding Officer, Brig Company, Headquarters and Support Battalion, Marine Corps Base, recommended to the Commanding Officer, Headquarters and Support Battalion, that the Applicant be discharged under other than honorable conditions by reason for frequent violations of the Uniform Code of Military Justice. The factual basis for this recommendation was (2) two Non-Judicial Punishment proceedings with a third pending. Private First Class L_ (Applicant) also has a felony arrest for significant violations committed in the local community. Performance is unsatisfactory and is detrimental to the command. Commanding Officer’s comments: “Based on his demonstrated performance and his lack of adherence to orders and direction, it is in the best interest of the Marine Corps that Private First Class L_ be expeditiously separated in accordance with MARCORPSEPSMAN paragraph 6210.2. In addition he be awarded an “Other than Honorable discharge” and assigned a RE-code of 4, preventing future military service.”

020621:  Applicant completed Intensive Outpatient Treatment at Alcohol Treatment Facility. Applicant discharged as minimally successful with a poor prognosis.

020621:  NJP for violations of UCMJ.
 Article 91:
Specification 1: Did at or about 1735, 15 May 02, disobey a lawful order issued by Cpl H_.
Specification 2: Was at or about 2005, 15 May 02, disrespectful in language to Cpl H_.
Specification 3: Was at or about 0700, 12 June 02, disrespectful to GySgt B_.
         Award: Forfeiture of $289.00 pay per month for one month and restriction for 14 days. Forfeiture suspended for a period of 30 days. Not appealed.

020627:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense. The least favorable characterization possible was under other than honorable conditions. The factual basis for this recommendation was the arrest by civil authorities for the following: attempting to break and enter the Hill Top Grocery and Hampstead Country Store with the intent to commit larceny therein; and, willful and wanton damage, injure and destruction of real property.

020701:  Applicant advised of rights and having elected not to consult with counsel, elected to appear before an Administrative Discharge Board.
020730:  Applicant waived his right to an Administrative Discharge Board.
020801:  Commanding Officer, Headquarters and Support Battalion, Marine Corps Base, recommended to the Commanding General, Marine Corps Base, that the Applicant be discharged under other than honorable conditions by reason of misconduct due to a commission of a serious offense. The factual basis for this recommendation was the arrest by civil authorities for attempting to break and enter the Hill Top Grocery and Hampstead Country Store with the intent to commit larceny therein; and willful wanton damage, injure and destruction of real property.

020809:  SJA review determined the case sufficient in law and fact.

020812:  NJP for violations of UCMJ.
 Article 86:
          Specification 1: Did, at Brig Co, HqSptBn, MCB, at 0800, 25 Jul 02, fail to go at the time prescribed to his appointed place of duty to wit: Dental (bldg 15).
         Specification 2: Did at Brig, HqSptBn, MCB, at 0700, 30 Jul 02, fail to go at the time prescribed to his appointed place of duty to wit: Morning formation.
 Article 92:
Specification 1: Did at Brig Co, HqSptBm, MCB, at 0700, 25 July 02, disobey a lawful order issued by Sgt Y_ to begin morning cleanup.
Specification 2: Did at Brig Co, HqSptBm, MCB, at 0700, 25 July 02, disobey a lawful order issued by GySgt B_to be squared away for morning formation.
Article 108:
Specification: Did at Brig Co, HqSptBm, MCB, on 20 July 02, break one lamp shade, property of the U. S. Government.
         Award: Forfeiture of $289.00 pay per month for 1 month, restriction and extra duty for 14 days. Not appealed.

020813:  Commander, Marine Corps Base, Camp Lejeune, directed the Applicant’s under other than honorable conditions discharge by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020815 by reason of misconduct due to the commission of a serious offense (A and B) 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 (C and D).

The Applicant contends that his service was “exemplary through training and [his] first year at Camp Lejeune.” 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. T he Applicant’s service was marred by four nonjudicial punishment proceedings for violations of Articles 86, 91, 92, 108 and 134 of the UCMJ. Due to the Applicant’s continued misconduct, punishment imposed at NJP on 20020508 was vacated on 20020523. The Applicant was issued a traffic citation for driving while under the influence of alcohol. The Applicant was also arrested by civil authorities for attempted breaking and entering and real damage to property with the intent to commit larceny on two different establishments. The Applicant’s violations of Articles 91, 92, 108 and 111 of the UCMJ are considered serious offenses. The Applicant’s arrests for attempted breaking and entering and damage to real property with intent to commit larceny are also considered serious offenses. 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 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 personal issues and his youth combined with “readily available alcohol” and lead him to make “a few mistakes.” While he may feel that his abuse of alcohol and immaturity were 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.

The Applicant contends that “misconduct is an extremely vague reason for separation and is used to avoid any solid reason for discharge.” The Applicant was administratively discharged due to misconduct by reason of commission of a serious offense. The Applicant’s civil arrests for attempted breaking and entering and damage to real property with intent to commit larceny are serious offenses and were the basis for the Applicant’s discharge. No other reason could more clearly describe why the Applicant was discharged. Relief denied.

The Applicant contends that, “Marines who make mistakes are never they same, they are not treated the same, but are treated with scornful looks and poor duties” and “that the actions taken against me were spiteful and unnecessary.” The Applicant further implies that he was treated inequitably during his period of service after his “DUI” in California and that this unfair treatment precipitated his later misconduct. There is no evidence in the record, nor did the Applicant provide any evidence, to support the contention that he was inequitably treated by his command at any time in the Applicant’s service. The Board could find no evidence in the record to support the contention that the Applicant was not responsible for his actions or should not be held accountable for his actions. The Applicant committed multiple serious offenses and his Commanding Officer recommended his discharge based on the Applicant’s misconduct. Relief denied.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code. An unfavorable “RE” 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. 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 01 September 2001 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 91, insubordinate conduct, Article 92 failure to obey a lawful order, Article 108, willfully damaging government property of $500.00 or less, Article 111, drunken driving, Article 121, larceny or Article 130, housebreaking.

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

D. 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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