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


FOR OFFICIAL USE ONLY


ex-LCpl, USMC
Docket No. MD05-01313

Applicant’s Request

The application for discharge review was received on 20050802. 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 20060406. 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.

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PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I am requesting my discharge to be upgraded, my RE code to be RE-1, and my name to be corrected on my DD 214. The name on my DD 214 is M_, J_ A_. I am requesting my characterization to be changed to Honorable or at least my RE Code be changed to RE-1 so I may join another service and serve my country. It has been two years since my discharge.

My main change needed is to upgrade my reenlistment code from RE-4 to RE-3D or RE-1A. I would like to enlist in the Armed Forces and serve my country. If approved I will join the US Army and serve in Iraq.”

Documentation

Only the service record book and medical record were reviewed. The Applicant did not provide additional documentation for the Board’s consideration.

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PART II - SUMMARY OF SERVICE

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

         Inactive: USMCR (DEP)    19941110 - 19950709      COG
         Active: USMC     19950710 - 19990302      HON
                  USMC     19990303 - 20010821      HON

Period of Service Under Review :

Date of Enlistment: 20010822             Date of Discharge: 20030723

Length of Service (years, months, days):

Active: 01 11 01 (excludes lost time)
         Inactive: None

Time Lost During This Period (days):

         Unauthorized absence: 1 day
         Confinement:              None

Age at Entry: 25

Years Contracted: 4

Education Level: 12                                 AFQT: 77

Highest Rank: Sgt                                   MOS: 0311

Final Enlisted Performance Evaluation Averages (number of marks): Enlisted performance reports were available to the Board for review.

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Marine Corps Good Conduct Medal, National Defense Service Medal, Sea Service Deployment Ribbon, Meritorious Unit Commendation, Expert Rifle Badge (Second Award), Expert Pistol Badge

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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 :

010822:  Reenlisted this date for a term of 4 years.

011127:  Counseling: Advised of deficiencies in performance and conduct (Improper use of the chain of command by surpassing the Company Commander, Battalion Commander, TBS Commander, and MCU Commanding General and all senior enlisted Advisors within each commander’s area of responsibility with platoon level issues.), necessary corrective actions explained, sources of assistance provided.

020119:  Counseling: Advised of deficiencies in performance and conduct (Improper actions while driving a privately owned vehicle aboard MCB Quantico, VA on 020118. SNM was witnessed, by the Commanding Officer of Combat Instructor Company, as SNM drove at speeds in excess of 65 MPH aboard base in areas which the speed limit was from 15 to 45 MPH. SNM is hereby informed that he was in violation of both state law and base regulations. SNM is advised to adhere to the posted speed limits and to consider the safety of fellow drivers both on and off base. This severe lack of judgment on SNM’s part is not in keeping with the highest standards of the Marine Corps and brings discredit upon SNM and the United States Marine Corps.), necessary corrective actions explained and disciplinary warning issued.

020223:  Counseling: Advised of deficiencies in performance and conduct (Violation of Art. 92: Dereliction of duties talking on a cell phone while on post and Art. 89 Disrespect toward a commissioned officer by calling a 2 ^nd Lieutenant a boot.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020328:  Counseling: Advised of deficiencies in performance and conduct (SNM lack of judgment in choosing to defecate in a training facility building that had no functioning head facility. SNM failed to set the example for subordinate Marines by choosing to display improper actions, and SNM utilized improper field sanitation and hygiene procedures.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020417:  Applicant to unauthorized absence on 020417.

020418:  Applicant from unauthorized absence on 020418 (1 day).

020429:  Applicant directed to participate in Infantry Platoon’s Remedial Physical Training Program. Applicant signed acknowledgement of placement.

020628:  Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 86: Specification 1: In that Sergeant M_ T. M_, U.S. Marine Corps, Instructor Battalion, The Basic School, Marine Corps Combat Development Command, Quantico, Virginia, on active duty, did, at Marine Corps Base, Quantico, Virginia on or about 17 April 2002, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Instructor Battalion, The Basic School, Marine Corps Combat Development Command, Quantico, Virginia. Specification 2: In that Sergeant M_ T. M_, U.S. Marine Corps, Instructor Battalion, The Basic School, Marine Corps Combat Development Command, Quantico, Virginia, on active duty, did, at Marine Corps Base, Quantico, Virginia on or about 15 May 2002, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Remedial Physical Fitness Training, Instructor Battalion, The Basic School, Marine Corps Combat Development Command, Quantico, Virginia. Charge II: Violation of the UCMJ, Article 92 Specification: In that Sergeant M_ T. M_, U.S. Marine Corps, Instructor Battalion, The Basic School, Marine Corps Combat Development Command, Quantico, Virginia, on active duty, having knowledge of a lawful order issued by Captain M_ N. E_ U.S. Marine Corps, to report to Remedial Physical Fitness Training, an order which it was his duty to obey, did at Instructor Battalion, The Basic School, Marine Corps Combat Development Command, Quantico, Virginia on or about 15 May 2002, fail to obey the same.

020703:  Charges referred to special court-martial.

021009:  Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 86: In that Sergeant M_ T. M_(Applicant), U.S. Marine Corps, Instructor Battalion, The Basic School, Marine Corps Combat Development Command, Quantico, Virginia, on active duty, did, on or about 17 April 2002 without authority, absent himself from his unit to wit: Infantry Platoon, Combat Instructor Company, Instructor Battalion, The Basic School, Marine Corps Combat Development Command, located at Marine Corps Base, Quantico, Virginia and did remain so absent until on or about 0930 18 April 2002.

021009:  Charges referred to special court-martial.

021012:  Law Enforcement Desk Journal Entry: Military Police observed a 1999 Ford Explorer, bearing VA Reg [number deleted] and no DoD decal on MCB, Quantico, VA with a defective break light. The vehicle was stopped and contact was made with the operator, who produced an Ohio operator’s license. A VCIN check revealed M_(Applicant)’s driving privileges to be suspended in the State of Ohio by an unknown authority for random selection of noncompliance, effective 010309. M_(Applicant) was apprehended, processed on scene, and released on his own recognizance. Applicant’s base driving privileges revoked.

021016:  Special Court Martial:
         Charge I: violation of the UCMJ, Article 86:
Specification 1: Failure to go. Plea : Not Guilty. Findings : Dismissed.
Specification 2: Failure to go. Plea : Not Guilty. Findings : Dismissed.
Charge II: violation of the UCMJ, Article 92:
Specification: Disobey lawful order. Plea : Not Guilty. Findings : Not Guilty.
Additional Charge 86:
Specification: UA 17Apr02 - 18Apr02. Plea : Not Guilty. Findings : Guilty.
         Sentence: Reduction to E-4.
         CA 021030: Sentence approved and ordered executed.

021107:  NJP for violation of UCMJ, Article 92: In that Sgt M_(Applicant), did, on or about 021015 and 021016, fail to obey a lawful general order, to wit: MCO 5110.1c, by wrongfully operating his privately owned vehicle under a state and base revocation.
Violation of UCMJ, Article 134: In that Sgt M_(Applicant), did, on or about 021016, did act in a manner prejudicial to the good order and discipline of the armed forces by lying to his Plt Comdr when asked about driving his P.O.V. since 021012.
         Award: Forfeiture of $489.50 per month for 2 months, restriction and extra duty for 45 days, reduction to E-3. Forfeiture and reduction suspended for 6 months. Not appealed.

021118:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of a pattern of misconduct. The factual basis for this recommendation was your misconduct throughout your career as recorded in your Service Record Book. The least favorable characterization of service possible is under other than honorable conditions.

021125:  Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

021206:  Commanding Officer, Combat Instructor Company, Instructor Battalion, Quantico, Virginia, recommended Applicant’s discharge under other than honorable conditions by reason of misconduct specifically a pattern of misconduct. Commanding Officer’s comments: “Corporal M_(Applicant) entered into active duty on 11 July 1995. After boot camp and the School of Infantry, he was assigned to Company B, 1st Battalion, 8th Marines.
On 12 December 1996, Corporal M_(Applicant) was seen at company level officer hours for violating Article 91 (Disrespect to a Non-Commissioned Officer) of the UCMJ. He was awarded forfeiture of $237. On 27 February 1997, he received a 6105 entry for his failure to maintain physical fitness by falling out of two company hikes during a Spanish FPhibex. On 31 October 1997, he again received a 6105 entry for dropping out of two company hikes on 12 February 1997 and 31 October 1997. Corporal M_(Applicant) was subsequently not recommended for promotion to Corporal from January 1998 to March 1998 because of physical weakness.
On 19 March 1998, Corporal M_(Applicant) was transferred to Company C, 1st Battalion, 2d Marines. On 07 January 1999, He was transferred to Headquarters Company, 2d Marines. Corporal M_(Applicant) was the subject of company level office hours on 29 March 1999 for violating Article 108 (Unauthorized Possession of Government Property). He was awarded forfeiture of $335 and 14 days restriction and extra duties. Corporal M_(Applicant) was not recommended for promotion to Sergeant from July 1999 to September 1999 because of a lack of leadership.
On 07 August 1999, Corporal M_(Applicant) was transferred to Company B, 1st Battalion, 8th Marines. He was not recommended for promotion to Sergeant from October 1999 to March 2000 because of a lack of leadership.
On 28 January 2000, Corporal M_(Applicant) was transferred to Headquarters and Service Company, 1st Battalion, 8th Marines. On 29 September 2001, Corporal M_(Applicant) was transferred to Combat Instructor Company, Instructor Battalion, The Basic School. On 05 November 2001, he was officially counseled for being dropped from the Sergeant’s Course by failing the Physical Fitness Test with a run time of 36 minutes. On 27 December 2001, the Commanding Officer, Instructor Battalion made a page 11 counseling entry for improper use of the chain of command by bypassing the Company Commander; Battalion Commander; Commanding Officer, The Basic School; the Commanding General, Marine Corps University and all senior enlisted advisors to discuss problems with the Training and Education Command Sergeant Major. On 18 January 2002, he received a page 11 counseling for excessive speed (65 MPH) while driving aboard the base. On 08 March 2002, Corporal M_(Applicant) received a 6105 entry for violating Article 92 (Dereliction of Duty) by talking on a cell phone while on post and for violating Article 89 (Disrespect toward a Commissioned Officer) by calling a Second Lieutenant a “boot.” On 21 March 2002, he received a 6105 entry for improper hygiene, poor judgment and failing to set the example by defecating in a training building aboard Fort A. P. Hill.
On 16 October 2002, he was found guilty at a Special Courts Martial for violating Article 86 (Unauthorized Absence). He was awarded reduction to Corporal.
On 12 October 2002, the military police pulled Corporal M_(Applicant) over for a broken tail light. The military police discovered that he was driving on a state suspension from the state of Ohio. They revoked his base driving privileges on the scene and issued him a notification that his base driving privileges were suspended. On 15 October 2002, the day before his Special Courts Martial, he was observed driving aboard the base. He was again observed driving aboard the base the following day, 16 October 2002, the day of his Special Courts Martial. When questioned by his platoon commander, SNM denied that he had driven on base since 12 October 2002. His platoon commander’s follow up question was “how did you get to work this morning?” He replied that he drove. Corporal M_(Applicant) was seen at battalion level office hours on 07 November 2002 for violating Article 92 (Failure to Obey Order or Regulation) and Article 134 (Lying to his Platoon Commander). He was awarded forfeiture of 1/2 a month pay per month for 2 months, 45 days of restriction and extra duties and reduction to Lance Corporal. The forfeiture and reduction were suspended for a period of six months.
Corporal M_(Applicant) has had numerous disciplinary procedures throughout his career. He requires an excessive amount of supervision to accomplish routine tasks. He is unreliable and not trustworthy. He does not have the moral courage to accept responsibility for his actions. He is a bad example to the Marines that he comes into contact with daily. Corporal M_(Applicant)’s continued presence will create animosity within the unit. His way of life is not conducive to the good order and discipline in the Marine Corps.
Corporal M_(Applicant) is a Marine who cannot conduct himself to Marine Corps Standards. I recommend Corporal M_(Applicant) be discharged from the Marine Corps with an Other Than Honorable characterization. ”

030109:  Commanding Officer, Instructor Battalion, The Basic School, Quantico, Virginia, in concurrence, forward the recommendation dated 021206.

030501:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed a pattern of misconduct, that such misconduct warranted separation, and recommended discharge under other than honorable conditions.

030618:  GCMCA, Commanding General, Training Command, Quantico, Virginia directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

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PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030723 by reason of misconduct due to a pattern of misconduct (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).

When a Marine’s service 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 nonjudicial punishment proceedings for violations of Articles 92 and 134 of the UCMJ. The Applicant’s violation of Article 92 of the UCMJ is considered the commission of a serious offense. The Applicant was also convicted at special court-martial of violating Article 86 of the UCMJ. The evidence of record shows the Applicant was counseled for dereliction of duty and improper use of the chain of command. 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 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 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 P1900.16F), effective 01 Sep 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 89, disrespect toward a superior commissioned officer or Article 92, failure to obey an order/regulation.

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