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


FOR OFFICIAL USE ONLY


ex-PFC, USMC
Docket No. MD06-00418

Applicant’s Request

The application for discharge review was received on 20060123 . The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable and the Narrative Reason for Separation be changed to “ Release from AD . ” The Applicant requests a documentary record discharge review. The Applicant designated Department of Veteran Affairs as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20061130 . 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 attached letter to the Board:

“To whom it may concern,

My name is M_ K_ SSN (deleted). I was discharged from the Marine Corps 05/01/05 under “other than honorable conditions” for a pattern of misconduct. I. strongly disagree with this type of discharge. After reviewing my service records and the contents of this letter, I believe the reviewing board will reconsider my discharge and grant me a “General / Under Honorable Conditions”.

I.       I received awards and decorations .

a.       Over Seas Deployment ribbon (2nd award)

b.       National Defense Service Medal

c.       Global War on Terrorism Service ribbon

d.       Iraq Campaign Medal

e.       I earned my green belt in the Marine Corps Martial Arts Program

f.       I received a letter of appreciation from the Commanding Officer of MCAS Iwakuni, Japan for hard work and dedication to duty preparing, cooking, and serving the Marine Corps Birthday Meal.

g.       I received a letter of appreciation from the Commanding Officer of HQ & HQ Squadron MCAS Iwakuni, Japan for my participation in setting up for a base evacuation exercise.

II.      I had combat service .

a.       I served in Iraq (Operation Iraqi Freedom II) with HQ Platoon, Delta Company, 2nd Light Armored Reconnasianse, 2nd Marine Division.

III.     My record of NJPs / Article 15s indicates only isolated minor offenses .
IV.      Medical or physical problems impaired my ability to serve .

a.       I returned home from Iraq with a medical issue. I was scheduled to return to Iraq on 02/01/05 but was found unfit for deployment (nondeployable) for my medical issue. But I was discharged before a diagnosis was found.

V.       My discharge was based on a few offenses, but they were mostly only minor youthful offenses .

IV.      I believe I should have earned a General / Under Honorable with Medical Condition discharge. If the Marine Corps found me medically unable to
deploy that should have been stated in my discharge as well .


Above are the following reasons why I deserve a discharge upgrade. My service records and medical records will prove that all of my above statements are true and can be verified. Thank you for accepting this letter and for the reconsideration of upgrading my discharge. I am proud to have earned the title United States Marine and will always take pride for serving, but do not want my future to be jeopardized as a result of a few youthful mistakes I made while serving as a teenager and young adult.


Sincerely,

[signed] M_ K_
M_ K_”


Additional issues submitted by Applicant’s counsel/representative ( Department of Veterans Affairs ):

“Dear NDRB,

I am requesting your approval to upgrade the discharge for M_. I have sat with him extensively and listened to his explanations regarding his discharge. I personally worked administrative discharges while on active duty, and believe his discharge should have been a general discharge.

Significant time passed between his first punishment to his last infraction, which appears he did everything right, but feel on deaf ears. His service in Iraq should be highly taken into consideration. Because of his service, he is now facing combat related problems for which the Veterans Administration may not treat because of the character of discharge. This is totally unfair for youthful indiscretions. His service appears to have been satisfactory enough for him to be deployed to defend his country.

Please review his medical records while he was at Camp Lejune. He was found non-deployable, and was to meet a medical board. However, the administrative discharge came before the results of the board. The medical problems that made him non-deployable are the same ones used to file for a service-connected claim with the Veterans Administration (VA). If his discharge is not upgraded, they VA can deny him compensated benefits. This is unfair to a combat veteran who otherwise would be treated.

He is now gainfully employed and has a supervisor position. Our office will forward letters of support for him. This veteran truly deserves to have his discharge upgraded, and I respectfully request your cooperation.

Sincerely,
[signed] T_ R. D_
T_ R. D_
Director”

Documentation

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

Letter from B_ K_ (Applicant’s mother), dtd September 9, 2005
Applicant’s DD Form 214 (Member 4)
Letter from T_ R. D_, Director , Department of Human Services , Office of Veterans Affairs, County of Lehigh, dtd December 13, 2005
Letter from T_ R. D_, Director , Department of Human Services , Office of Veterans Affairs, County of Lehigh, dtd January 11, 2005

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PART II - SUMMARY OF SERVICE

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

         Inactive: USMCR (DEP)    20020208 - 20020224       COG
         Active: None

Period of Service Under Review :

Date of Enlistment: 20020225              Date of Discharge: 20050427

Length of Service (years, months, days):

Active: 0 3 0 2 0 3
         Inactive: None

Time Lost During This Period (days):

         Unauthorized absence: None
         Confinement:              None

Age at Entry: 18

Years Contracted: 4

Education Level: 12                                 AFQT: 58

Highest Rank: LCpl                                   MOS: 3381

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency: 4 . 1 ( 1 0)             Conduct: 4.0 ( 1 0)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Sea Service Deployment Ribbon (2d Awd), Global War on Terrorism Service Medal, Iraq Campaign Medal, National Defense Service Medal, Letter of Appreciation, Rifle Qualification Badge (Marksman)

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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 :

020726 :  NJP for violation of UCMJ, Article 92 : At MCD, Ft Lee, VA, in that SNM did on or about 0805/020721 violate DetO P3000.1K to wit; No student under the age of 21 will consume alcoholic beverages while stationed at Marine Corps Detachment .
         Award: Forfeiture of $ 100. 00 pay per month for 1 month, restriction for 16 days (14 days suspended for 6 months) . Not appealed.

020726:  Counseling: Advised of deficiencies in performance and conduct ( Violation of Art 92. At MCD, Ft Lee, VA. In that applicant did on or about 0805/020721 violated DetO P3000.1K to wit: No students under the age of 21 will consume alcoholic beverages while stationed at the Marine Corps Detachment ), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020801:  Acknowledged understanding of eligibility but not recommended for promotion to PFC for the month of Aug 2002 promotion p eriod because of previous NJP.

030701:  NJP for violation of UCMJ, Article 92: A t HQHQRON MCAS Iwakuni, Japan on 030620 at 0240 consumed alcohol under the legal age of 21.
Violation of UCMJ Article 128: At HQHQRON MCAS Iwakuni, Japan on 030620 at 0240 assaulted PFC K_ by striking him in the face.
         Award: Forfeiture of $ 645. 00 pay per month for 2 month s , restriction for 3 0 days. Not appealed.

040218:  Counseling: Advised of deficiencies in performance and conduct (The loss of government issued gear), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

0 50218 :  NJP for violation of UCMJ, Article 86 : In that LCpl K_ (Applicant), did, on or about 1801, 050214, without authority, absent himself from appointed place of duty, to wit: Special Liberty check-in and did remain so absent until 0731/050216 .
Violation of UCMJ Article 86 : In that LCpl K_ (Applicant), did, on or about 0731, 050216, without authority, absent himself from appointed place of duty, to wit: Check-in with 1 ^st Sgt S_ and did remain so absent until on or about 0900/050216 .
         Award: R estriction and extra duty for 14 days. Not appealed.

050228:  NJP for violation of UCMJ, Article 86: In that LCpl K_ (Applicant), did, at HP 503, 2d LAR Bn, located on Camp Lejeune, NC, on or about 1801/20050221, without authority, absent himself from appointed place of duty, to wit: Battalion Formation and did remain so absent until 2145/20050221.
Violation of UCMJ Article 92 : In that LCpl K_, did, at HP 503, on or about 1801/20050221, fail to obey a lawful order, to wit: Breaking restriction guidelines.
         Award: Forfeiture of $ 692. 00 pay per month for 2 month s , restriction for 6 0 days, reduction to E- 2 . Not appealed.

050310 :  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 6105 entries dated 020726 and 040218, Company NJP o n 050218, Battalion NJP’s on 050228, 030708, and 020726 . Applicant informed the least favorable character of service possible was under other than honorable conditions.

050310 :  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights .

0 50310 :  Commanding Officer, 2d Light Armored Reconnaissance Battalion, 2d Marine Division recommended to Commanding General, 2d Marine Division that Applicant be discharge d under other than honorable conditions by reason of a pattern of misconduct . Commanding Officer’s comments: “Retention of the respondent would adversely affect the morale, discipline, and military effectiveness of this organization. It is recommend ed that he be expeditiously separated from the Marine Corps with an other than honorable discharge. He has proven that he cannot be trusted or conform to a military lifestyle. Time and time again, he has been given a chance to make the right decision. [Applicant] has received non-judicial punishment for multiple unauthorized absences, repeated underage consumption of alcoholic beverages, assaulting another Marine and has a habit of accepting no responsibility, whatever the assigned task may be. His blatant disregard for authority set s a cancerous example to other members of this command. I recommend he be discharged at the earliest possible convenience of the Division. ”

050411 :  SJA review determined the case sufficient in law and fact.

050422 :  GCMCA, Commander, 2d Marine Division (Rear), II Marine Expeditionary Force , directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct .

050426:  Applicant completed separation physical.

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PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20050427 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).

Issue s I , II, III , V . The Applicant implies that his discharge is inequitable because he received awards and decorations. The Applicant also implies his discharge is inequitable because he had “combat service” and he committed only “isolated minor offenses.”

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 two retention warnings and four nonjudicial punishment proceedings for violations of Articles 86, 92 and 128 of the UCMJ. The Applicant’s violations of Articles 92 and 128 of the UCMJ are considered serious offenses for which a punitive discharge is authorized if adjudged as part of the sentence upon conviction at a special or general court-martial. The Applicant’s first nonjudicial punishment proceeding (NJP) was on 20020726. The Applicant’s last NJP was on 20050228. 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. Additionally, the evidence of record clearly documents that misconduct due to a pattern of misconduct was the reason the Applicant was discharged. No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged. Relief is not warranted.

Issues I V , VI. The Applicant contends that his medical problems impaired his ability to serve and implies that he should have received a medical discharge.

Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Additionally, while the Applicant may feel that medical problems 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 on this basis is denied.

Though the evidence of record does not show that the Applicant was recommended for a Physical Evaluation Board, the following is for the edification of the Applicant: Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record.

The Applicant implies that his discharge should be changed so as not to jeopardize his future. The Applicant’s representative contends that the Applicant’s discharge should be changed to make the Applicant eligible for service-related benefits.

The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. 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 relevant post-service documentation for the Board to consider. Relief denied.

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.

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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 92, failure to obey order/regulation or Article 128, assault .

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 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

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