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USMC | DRB | 2009_Marine | MD0900327
Original file (MD0900327.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20081125
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request: Characterization change to:
                  Narrative Reason change to:

Summary of Service

Prior Service:
 Inactive:         U S ANG     19900606 - 1 991121 5     Active:   U S ANG (IADT)     19890123 - 19890429
The Applicant’s NGB Form 22 indicates he served for one year, nine months, and ten days in a reserve component prior to the period of service covered by the Form 22 beginning on 19900606. The actual dates for this period of service could not be determined from the available records.
        
Period of Service Under Review:
 Date of Enlistment: 19991019     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20010109      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 22 D a y ( s )
Education Level:        AFQT: 41
MOS: 5811
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF : UA: 0701, 20000303 - 2200, 20000423 (51 days, 14 hours, 59 minutes)
 0001, 20000902 - 1738, 20091112 ( 71 days , 17 hours, 37 minutes )
CONF:

NJP:
- 20000509 :      Article 86 (UA ) 0701, 20000303 - 2200, 20000423 ( 51 days, 14 hours, 59 minutes )
         Awarded: Suspended:

SCM: SPCM: CC: Retention Warning Counseling:

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         “ 99 04 20 ”
         “ IN LIEU OF TRIAL BY COURT MARTIAL ”
         “ 000303-000423, 000902-001110 ”

The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate.





Types of Documents Submitted/reviewed

 Related to Military Service:

DD 214:        Service / Medical Record: Other Records:

Related to Military Service (cont):
It should be noted attempts to obtain the Applicant’s complete military medical record may have been without success . T he Applicant provide approximately 29 selected pages from his military medical record as part of his package submitted to the NDRB for review and the NDRB received 35 pages from the Department of Veterans Affairs, Philadelphia , PA . There is some concern this documentation may not be complete. However, all medical documentation received was reviewed

Related to Post-Service Period:  
         Employment:                        Finances:                          Education /Training :     
         Health/Medical Records:           Substance Abuse:                           Criminal Records:       
        
Related to Post-Service Period (cont):

Family/Personal Status:          Community Service:       References:

Additional Statements :
From Applicant:         From Representat ion :   From Congress member :

Other Documentation :
         -Medical opinion addressing the Applicant’s claims of abuse, maltreatment, and medical malpractice.
Pertinent Regulation/Law

 A. Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 August 1995 until 31 August 2001.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7) (b), Presumption Concerning Court-Martial Specifications .

 C . Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs , Part V, Para 502, Propriety and Para 503, Equity .

D . 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 (UA) .


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

Applicant’s Issues (as agreed to by applicant’s counsel)*

 1. Reenlistment opportunity.

2. Alleged a buse and maltreatment suffered in boot camp, to include injury due to the abuse, improper medical care while in recruit training, and abuse and mistreatment received after graduating from recruit training but while assigned to the B asic M arine P latoon (BMP) , M arine C orps R ecruit D epot (MCRD) , P arris I sland, SC .

3. Alleged abuse and mistrea tment at Marine Combat Training, Camp Lejeune, NC, and at Military Police School , Fort Leonard Wood, MO, to include lack of due diligence on the part of the Marine Corps to either execute or complete a requested investigation by a congressman.

4. Alleged abuse and mistreatment while serving at Marine Corps Base, Quantico, VA.

5. Overall military record of service, to include prior service with the Army National Guard.

6. Discharge was not conducted in accordance with regulations.

7. Post-service conduct.

* The Applicant submitted an extremely complex and lengthy petition for discharge upgrade specifically citing numerous issues for consideration by the NDRB. Upon careful review of the set of Issues submitted, the NDRB determined the seven Issues above comprise the complete set of Issues which the NDRB considered to be decisional Issues. The NDRB determined the remaining concerns and discussion points were not decisional Issues the NDRB could appropriately review because they were not considered relevant to the Applicant’s in service record, post-service conduct, or discharge process. The NDRB reminds the Applicant he possesses the right to petition the Board for Correction of Naval Records and may contact service recruiters of his choice to continue his attempt to reenter military service by obtaining the appropriate waivers he requires. However, the concerns addressed by the Applicant with respect to these processes fall outside the NDRBs purview and were not deemed relevant for our upgrade review.

Decision

Date: 20 0 9 0507            Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall MISCONDUCT .
Discussion

 : either which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum, specifically the paragraph concerning , regarding this Issue.

Issue 2: (EQUITY) RELIEF NOT WARRANTED. The Applicant contends he is entitled to a characterization upgrade for the following reasons :
        
         A. Abuse suffered while undergoing recruit training :
                  (1) Water bowling.
                  (2) Ridiculed and chastised when he reported his injury.
        
                  (3) Punched in the face by his drill instructor.
         B. Abuse and maltreatment suffered while re covering from surgery after recruit training.
                  (1) Forced to exceed limits of limited duty chit.
                  (2) Denied convalescent leave.
         C. Improper medical care during and after recruit training.
                   (1) Forced to delay surgery which was detrimental to health and well being.
                  (2) Medical malpractice.
In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service was
marred by one NJP for violation of the Uniform Code of Military Justice (UCMJ): Article 86 (UA) for a period of 51 days. The Article 86 violation occurred while the Applicant was assigned to MCRD, Parris Island, SC . Vi olation of Article 86 for more than 30 days is considered a serious offense which could have resulted in a punitive discharge and confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. The command did not refer the Applicant for a court-martial but opted instead to retain the Applicant on active duty.

The Applicant was later charged at Marine Corps Base, Quantico, VA, his first permanent duty station , with a second Article 86 violation which represented a UA period of 71 days. This violation was referred to trial by a special court-martial. The Applicant requested, and was granted, an “Under Other Than Honorable Conditions” discharge in lieu of a trial by special court-martial. The Applicant should understand relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. This presumption is strengthened by the Applicant’s admission of guilt to the charge in his written request for separation in lieu of a trial by special court-martial dated 18 December 2000. The NDRB also notes the Applicant signed the request for separation with the advice of a military lawyer who explained to t he complete satisfaction of the Applicant the charge to which he admitted guilt and the consequences of an “Under Other Than Honorable Conditions” discharge. The NDRB reviewed the Appl i cant ’ s concerns as submitted with his DD-293 Form and the foll owing is provided :

A. The Applicant contends he was abused and maltreated while undergoing recruit training at M CRD , Parris Island, S C. The Applicant specifically cites the following examples of abuse: He was forced to drink several canteens of water in a ritual called water bowling ; he was ridiculed and chastised when he reported he had an injury to the command ; and he was punched in the face by a drill instructor which left perm ane nt scars . It should be noted the injury reported was later diagnosed to be a direct inguinal hernia, which was determined to be non-life threatening or critical and did not require emergency surgery to correct; surgery was deemed elective and the Applicant choose to complete recruit training prior to surgical measures being taken. For clarity, these contentions will be addressed individually below:

(1) The Applicant states he was subjected to water bowling while in recruit training and contends the water bowling caused him to suffer an injury later diagnosed as a direct inguinal hernia. To support this contention he submitted news articles relating to Marine Corps drill instructors convicted of abusing recruits during 2007 , which includ e d the use of water bowlin g ; excerpts of his service medical record; and a letter to his U.S. Congress ional Representative dated 3 March 2000 where he initially makes claims of mistreatment.

- The NDRB reviewed the news articles provided and determined they were not directly relevant to the Applicant’s case. These articles discuss misconduct far in excess of water bowling and the misconduct discussed in the articles occurred seven years after the Applicant graduated from recruit training. The incidents covered in the news articles also occurred at the Marine Corps’ San Diego Recruit Depot, not at Parris Island where the Applicant completed his recruit training. The NDRB determined the evidence presented does not show the Applicant was directly abused by drill instructors through the use of water bo wl ing at MCRD, Parris Island, SC.

- A review of the medical documentation provided by the Applicant does not indicate his injury , a direct inguinal hernia , was related to or caused by consumption of large quantities of water. There is no documented evidence in the record where military medical doctors connect the Applicant’s hernia to an excess of water drinking. Furthermore, the medical service record


(page 16 of 29, as marked and submitted by the Applicant ) explicitly states the defect which led to the hernia did ‘ Exist Prior To Entry (EPTE) ’ . T his medical condition was not noted during any physical exam ination prior to entering active duty and it would have been difficult to detect until aggravated by the physical conditioning typically incurred during recruit training . Finally, the NDRB notes the medical records do not indicate the Applicant ma de any complaints while being examined by military medical officials he sustained abuse or maltreatment during recruit training , nor is there any indication the Applicant’s doctor suspected abuse or maltreatment during his examination . The NDRB determined the evidence available does not show the Applicant’s hernia was due to water bowling , abuse , or m al treatment while undergoing recruit training.

- The Applicant provides a copy of a letter to his U. S. Congressional Representative as documentary evidence in support of his claim. The NDRB does not accept the statements made by the Applicant in the letter to h is U.S . Congress ional R epresentative to be sufficient evidence abuse actually occurred or was the cause of his hernia . The state ments made by the Applicant do not prove abuse or m al treatment and no additional documentation, evidence, witness statements , or documentation showing adjudication of those guilty were provided to support these claims. While the NDRB appreciates the fact the Applicant notified his Congressional Representative and made allegations of possible misconduct , unless a complete military investigation determined abuse occurred the NDRB cannot accept such statements alone as documented proof recruit abuse took place. As stated, there was no documented proof drill instructors from the Applicant’s recruit training battalion w ere charged or found guilty of recruit abuse during the Applicant’s tenure at Parris Island. The NDRB hopes t he Applicant realize s how serious accusations of abuse and maltreatment are when made against those Marine’s entrusted to train American’s young men and women for military service in the Marine Corps a nd the Applicant should also understand how seriously the Marine Corps takes complaints of such action when made. Th is issue will be further discussed in subsequent paragraphs. The NDRB determined the evidence submitted did not support this claim.
        
         (2) The Applicant did not submit credible evidence to support the contention he was ridiculed and chastised by his drill instructors or by the Marines responsible for him when he reported his injury . Again, the Applicant’s letter to h is U. S. Congress ional Representative was not considered to be compelling evidence he was subjected to either ridicule or being chastised . There were no witne sses named in the letter, nor w ere s pecific drill instructors named who allegedly ridiculed the Applicant during recruit training . For the edification of the Applicant, even if evidence was provided which demonstrated the Applicant had been ridiculed and chastised, the NDRB determined this would not be a justifiable reason for any service member to enter into a UA status . There are numerous other options service members can exercise to report such behavior besides entering into a UA status . It was also noted the Applicant was 2 9 years old upon entry into the Marine Corps (1 1 years older than the average Marine recruit) and had previously spent three years in the Army National Guard ; so available options to report such behavior would not have been unknown to him nor should they have been as intimidating as they may appear to someone more junior in age or with less military experience.

(3) The Applicant submitted a page from his military medical record to support the contention he was punched in the face by a drill instructor. The medical record page is dated 3 May 2000 and documents the Applicant was seen that day by military doctors due to a sore throat. The notes recorded include an observation the Applicant had “two minor laceration scars to head”. The NDRB notes the following: T here is no indication of the scars or cause of the scars in the Applicant’s medical record while he was in recruit training (the Applicant graduated from recruit training in January 2000); the medical record of 3 May 2000 does not mention the cause of the minor scars nor does the Applicant point out or discuss with t he military doctor he was hit by a drill instructor which resulted in the scarring of his for e head ; and the medical care for his sore throat was performed after his return from his first period of UA (meaning , there is no proof the injury causing the scar did no t occur while the Applicant was in a UA status ) . Additionally, while t he NDRB does not consider the comments made in the Appl i cant’s letter to his U . S . Congressional Representative as documented proof misconduct or abuse occurred, it was noted this i ncident was not mentioned in his letter of 3 March 2000 . Again, the NDRB determined the record of evidence does not support the Applicant’s claim he was punched in the face by a drill instructor.

B. The Applicant contends he was abused and maltreated at MCRD, Parris Island, S C while recovering from his elective, corrective surgery following recruit training. The Applicant specifically cites the following examples of abuse and maltreatment: H e was forced to perform duties beyond those allowed by his doctor and annotated on his ‘ limited -duty ’ chit while recuperating from elective, corrective surgery; and he was denied the convalescent leave recommended by his doctors.



(1) The Applicant submitted no credible evidence to document the alleged abuse suffered while recovering from his elective, corrective surgery. The Applicant’s letter to his U.S. Congress ional Representative on 3 March 2000 claims he was maltreated by his G unnery Sergeant who made him perform tasks in excess of those permitted in his ‘ limited -duty ’ chit. The “ limited -duty” chit is not contained in the Applicant’s medical record nor was it provided by the Applicant to the NDRB for review or comparison against what he was told to do v ers u s his limitations as established by his doctors . The NDRB again does not consider the statements made in th e letter to the U.S . Representative to be compelling evidence abuse or maltreatment actually occurred . The NDRB also notes the Applicant’s medical record makes no mention of any noted ill effects or detrimental physical consequences in any medical follow-up diagnosis or during his separation physical as a result of the actions allegedly demanded by the G unnery Sergeant , which the Applicant claims were in violation of the doctor ’ s limitations as annotated on his ‘ limited -duty ’ chit. Nor were there any documented notes found in the medical record where the Applicant complained to a military doctor he was being forced to perform physical activities outside his recommended limitations as established by his doctors. The NDRB determined the record of evidence does not support the Applicant’s contention he was abused or maltreated by the G unnery Sergeant . The NDRB notes even if the evidence did clearly show the Applicant had been forced to perform duties in excess of his
doctor’s recommendations it would not be a justifiable reason for enteri ng into a UA status when other options are available to report such misconduct . Medical paperwork from a surgery follow-up dated 9 February 2000 indicates the Applicant has mild pain, swelling , and numbness at the surgery site , has excellent healing progress , and no evidence of infection. There is no mention in this medical report , or any reviewed , of reported abuse or maltreatment from members of t he Applicant’s command. Nor do any doctor’s document any injuries to the Applicant’s surg ic al area due to violations of his “limited-duty chit” or are they su spect of abuse or maltreatment based on either observations made of the Applicant or comments made by the Applicant. It is also noted this medical paperwork dated 9 February 2000 was not contained in the package received by the Applicant; however, it was contained in the medical documentation received by the Department of VA.

(2) The Applicant contends he was denied convalescent leave following elective, corrective surgery until he reported the abuse by his Gunnery Sergeant , as described in the above paragraph, to his command . There is no evidence in the record, nor is any provided by the Applicant to support this claim. Again, the NDRB does not consider this to be sufficient justification for entering into a UA status even if the Applicant’s claims were fully substantiated. T he record of evidence does not show the Applicant was either abused or prevented from starting convalescent leave. The military record does show the Applicant was charged with UA beginning 3 March 2000 when he failed to return from his approved convalescent leave. This date indicates the Applicant began convalescent leave on or about 12 February 2000 . While the NDRB does not consider the comments made in the letter to his U.S. Congressional Representative to be definitive proof misconduct occurred, it is interesting to note there was no mention of his convalescent leave being denied or delayed in his 3 March 200 0 c orrespondence . The NDRB rejects the Applicant’s contention as being without merit based on the lack of evidence.

C. The Applicant contends he was given improper medical treatment during and immediately after recruit training. The Applicant specifically contends the following: H e was required to delay corrective surgery until after completing recruit training ; the delay of surgery was dilatory; and the corrective surgery was flawed and left him infertile. While these issues are outside the NDRB’s ability to adjudicate , they were reviewed as mitigating factors to determine if they supported the member’s decision to enter into a UA status. The following is provided:

(1) The Applicant claims he was required to delay corrective surgery until completing recruit training. The record of evidence directly contradicts the Applicant’s contention. On 29 November 1999, the day the Applicant was diagnosed with his hernia, the Applicant’s medical record shows he was advised of the surgical repair options to treat his hernia. The Applicant elected to attempt to complete recruit training before having the corrective surgery rather than having to repeat part of recruit training, as would have been required had the Applicant elected immediate surgery. The NDRB determined the record of evidence clearly shows the Applicant was not forced to delay his surgery and rejects his claim as being without merit. The NDRB specifically notes the Applicant’s condition was never determined to be serious enough to warrant anything other than elective surgery.
(2) The Applicant contends the delay in his surgery was detrimental to his health and well-being. The Applicant refers to the operation report dated 4 February 2000 to support his claim the delay in corrective surgery was dilatory. However, upon review of the medical documentation provided and available for review this contention is not supported by the evidence and clearly not by the report of 4 February 2000. On 20 December 1999 t he Applicant was seen by a general practitioner who makes note the Applicant has an upper respiratory infection; the doctor also clearly notes the patient is doing well and wi ll return as necessary if

there is an increase in pain. There are no comments annotated which give any indication the Applicant was suffering due to his hernia condition. On 22 December the Applicant me t with his surgeon. During this meeting the doctor fills out a form indicating this is a non-emergent/elective surgery/medical procedure and continues his consulta ti on . The Applicant is maintained in a full duty status . Once again there is no documentation of any suffering or pain associated with the hernia based on the Applicant electing to delay his surgery . Furthermore, o n 29 December 1999 the Applicant completed a pre-crucible medical screening where he signed a form denying symptoms and stating his desire to complete the Crucible. The NDRB notes the Crucible is the most physically challenging stage of Marine Corps recruit training. On 28 January 2000, the Applicant returned to the doctors complain ing of cold sores and throat pain ; t his medical exa mination clearly documented no abdominal pain and this was after completion of the Crucible . The pre- operation report dated 4 February 2000 , written more than two months after the initial diagnosis, states the Applicant has a “mildly sym ptomatic right inguinal hernia ” but mentions no pain or complications suffered as a result of the Applicant’s choice to delay surgery and complete recruit training . The Applicant’s surgery occurred on 4 February 2000; the NDRB assumes shortly after the pre-operation report. As mentioned above, medical paperwork from a surgery follow-up dated 9 February 2000 indicates the Applicant has mild pain, swelling, and numbness at the surgery site, has excellent healing progress, and no evidence of infection. There is no mention in this medical report of any negative issues due to delayed surgery.

The NDRB does not accept th e 4 February 2000 report as evidence the Applicant suffered unduly by the delay in his surgery. Furthermore, as stated several times, the delay occurred at the election of the Applicant. It is noted the record does not show the Applicant returned to medical for associated hernia or abdominal pain or other related issues from the time of his diagnosis until his surgery. The only documented concerns are for non-hernia medical issues such as his upper respiratory illness, cold sores, and a sore throat. None of these were induced by a delay in his hernia surgery. From all appearances in the record, after the initial hernia diagnosis the Applicant returned to his recruit training platoon and completed his training and graduated without further hernia incident s . Significantly, the Applicant signed a statement expressly stating his desire to participate in the most demanding part of r ecruit training and showed no documented negative consequences as a result of this decision. It should also be noted the Applicant performed so well in recruit training after his hernia diagnosis he completed recruit training as the Platoon Guide (an honorary position among recruits graduating from recruit training) . The NDRB determined this issue is without merit based on the evidence provided.

(3) The Applicant claims an alleged mistake made during his hernia surgery left him unable to have children. The NDRB determined the alleged malpractice had no impact on the Applicant’s decision to enter into a UA status because it was unknown at the time of his misconduct. However, it was noted during the review of the service records the Applicant c onsistently reported he
had no depend e nt children on numerous military forms to include his DD Form 1966 (Record of Military Processing), dated 19 October 1999; SGLV-8286 (Service members Group Life Insurance Election and Certificate), dated 14 Novemb e r 2000 , where his sister was identified as his 1 00% beneficiary; and 2 updated of his MCTFS Record of Emergency Data , dated 24 October 2000 and 14 November 200 0. Then in a letter dated 19 September 2002 a report from a D octor of O steopathics indicate d the Applicant has one child but has been unsuccessful in getting “ a recent girlfriend pregnant ” . It is noted this letter is 3 2 months after his hernia surgery and 2 3 months after he last officially report ed he had no depend e nt s within the Marine Corps reporting system. The NDRB could not find a connection between the Applicant’s hernia operation and claim s of infertility if he had already father ed one child after his surgery. This discrepancy notwithstanding, the NDRB declined to consider this as a decisional issue since the Applicant states he was not aware of his alleged infertility until se veral years after his discharge and the NDRB may not adjudicat e issues of medical malpractice.

The NDRB determined the record of evidence, as discussed above, does not show the Applicant was harassed, maltreated, or given inadequate medical care while assigned to MCRD , P arris Island , SC . The NDRB further determined the contentions were not sufficient grounds for entering into a UA status , especially since no evidence was presented which demonstrated he entered into a UA status in order to seek additional medical advice or treatment f or conditions he thought he was not receiving adequate military medical treatment or had been provided faulty military medical treatment . The Board determined the awarded discharge was appropriate and an upgrade based on these issues would be inappropriate.

Issue 3: ( EQUITY) RELIEF NOT WARRANTED. The Applicant contends he is entitled to a discharge upgrade due to abuse and maltreatment suffered while attending Marine Combat Training at Camp Lejeune, N C , and while attending the Military Police Course at Fort Leonard Wood , M I . The Applicant believes because he kept asking about the status of the investigation into abuse while he was at recruit training he was maltreated by fellow Marines. The NDRB also considered the Applicant’s claims the Marine Corps failed to execute or complete an investigation requested by Congress as part of this Issue .

The Applicant failed to provide credible evidence to support his claim . The NDRB is under the impression the Applicant feels his 3 March 2000 letter to his U.S. Congressional Representative was evidence enough of alleged abuse and maltreatment by his drill instructors to warrant an investigation. However, this is not made clearly evident by his Congressional Representative ’s contact to the Marine Corps in his letter of 16 March 2000 , which also included a copy of the Applicant’s letter. The Representative asks the Marine Corps to give all due consideration to the Applicant’s request for a medical discharge based on the abuse suffered while recovering from surgery , not incurred while undergoing recruit training. The NDRB finds the statements about a medical discharge questionable. No where in the documentation provided by the Applicant for review or in his military record is there any mention of medical discharge being considered or pursued by his military c ommand. T o do so would have required a Physical Evaluation Board review and there is no indication this action was ever discussed , recommended , or initiated by either doctors or the c ommand. It is interesting to note t he Representative’s letter does not specifically ask for an investigation into any alleged abuse or mistreatment of the Applicant while at Parris Island ; only that the Applicant made claims of mis treatment. The NDRB is under the presum p tion because the Applicant was not further interviewed by anyone within the Marine Corps or NCIS , or asked to testify against anyone , that appropriate steps where taken by the Marine Corps leadership to conduct a preliminary investigation which determined th e claims were unfounded. There is no copy available of the Marine Corps ’ reply to the Representative’s letter due to number of years which has elapsed, nor is it clear if the Representative responded back to either the Marine Corps or the Applicant as the record does not contain a follow-on letter , nor was one provided by the Applicant for review. H owever, it is clear from the military documentation available t he Applicant’s hernia was not a suitable basis for a medical discharge and the Applicant was never called to testify against any drill instructor for alleged recruit abuse . It should be noted the lack of a response letter from the Marine Corps on file is not indicative the Marine Corps failed to address the concern . As standard policy within the Marine Corps, all inquires received from U.S. Congress are appropriately responded to and the inquiring Congressional office is answered within a relatively short period of time. As already stated, due to the number of years that has elapsed , the Office of Legislative Affairs (OLA), the office within the Marine Corps responsible for responding to all inquiries officially received by members of the U.S . Congress , has no res ponse on file. Nor should they as this correspondence is only required to be maintained on file for 2 ye ars in accordance with established guidance by the Secretary of the Navy and outlined in SECNAV M-5210.1, Records Management Manual . It should also be noted as standard policy the Marine Corps’ OLA would not directly correspond back to the Marine in question ; they respond back to the inquiring Congress member and allow the Congress member to respond back to their constituent .

The NDRB determined the awarded discharge was appropriate and an upgrade based on this issue would be inappropriate.

Issue 4: (EQUITY) RELIEF NOT WARRANTED. The Applicant contends he is entitled to a characterization upgrade for the following r easons:

         A. Harassment suffered upon his initial arrival at Marine Corps Base, Quantico, Virginia.
         B. Harassment received after return from his second period of unauthorized absence, specifically,
                  (1) Harassment by his commanding officer, and being
                  (2 ) Assigned inappropriate duties and tasks.

A. The Applicant contends he was harassed upon arrival at Marine Corps Base, Quantico, VA but makes no specific statements regarding the nature of the harassment or how the harassment led to his decision to enter into his second period of UA , other than to state he had the impression that “ nothing was going to be different than it was during his training ” . The Applicant appears to contend he perceived a continuation of his alleged abuse and maltreatment and this was the reason he decided to enter into his second period of UA from the Marine Corps almost immediately after reporting aboard his duty station . The NDRB noted the Applicant was officially ordered to report to Marine Corps Base, Quantico, VA no later than 2359 on 1 September 2000. The record of evidence clearly shows the Applicant did not report on time; his orders were endorsed showing he reported over three hours late at 0330 on 2 September 2000. The NDRB rejects the Applicant’s contention the harassment he received upon his late arrival to his first permanent duty station justifies the decision to enter his second period of UA. From all appearances, it appears the Applicant made a determination his new command was going to mistreat him based on statements made by the Marine Corps Base, Quantico, duty Staff Non- C ommissioned Officer (SNCO) who chastised the Applicant for reporting in 3 hours late , which technically placed him in a UA status. At th e time he reported, the Applicant had completed 3-years of Army National Guard duty ; completed Marine Corps recruit training and was the Platoon Guide of his training class upon graduation; had escaped ha rsh punishment for his first UA ; was promoted to Lance Corpor al within 30 days after an NJP ; and was allowed to continue his Marine Combat Training and MOS training to be a military policemen. With all this experience behind him, and being at least 1 1

years senior to his fellow Marines of the same statu s, it would stand to reason the Applicant would have been better prepared to make more rational decisions than to report to his first permanent duty station 3 hours late with the expectation a seasoned SNCO standing the duty w ould remain silent .

B. The Applicant contends he was harassed upon his return from his second period of UA. The Applicant specifically states he was harassed by his commanding officer and he wa s assigned inappropriate duties within his command.

(1) The Applicant contends he was harassed by his commanding officer who blew cigar smoke into his face and called him “the infamous Mr. T . ” when he reported into the CO’s office . The NDRB rejects the Applican t’s contention as being without merit as there is no documented evidence either of these events occurred and no witness statements were provided to support this behavior by a senior office r in the position of command. Even if documentation could show this incident occurred, the NDRB does not believe this would warrant a service member to enter into a UA status.

(2) The Applicant contends he was improperly assigned within the unit upon his return from UA based on his MOS training and he was assigned inappropriate duties while his legal issues were being resolved. The NDRB rejects these contentions as also being without merit. Upon the Applicant’s return from his second period of UA, the Applicant was charged with the commission of a serious offense and referred for trial by a special court-martial. The Applicant was assigned duties consistent with those assigned to a ny Marine determined to be ineligible for assignment in his primary MOS. The Applicant’s primary MOS, Military Policeman (MP) , specifically excludes Marines convicted by a special or general court-martial of serving as an MP ; it would have been inappropriate for the command to assign the Applicant to MP duties while he was pending a SPCM for a serious offense. The NDRB determined the assignment and duties given to the Applicant while awaiting his SPCM were appropriate . His assigned duties , which may have consisted of being detailed to working parties , were not deemed to be harsh, cruel, or unusual under the circumstances. The Applicant may have felt he deserved better and these were inappropriate dut y assignments and tasks ; however, his command interpreted th e overall situation with more clarity and purpose .

The NDRB determined the awarded discharge characterization was appropriate and an upgrade would be inappropriate based on these issues.

Issue 5: (EQUITY) RELIEF NOT WARRANTED. The Applicant contends he is entitled to a discharge upgrade based on his record of service. The Applicant cites his service in the Army National Guard as well as his service in the Marine Corps in support of this contention . The Applicant contends he was discharged under honorable conditions from the Army National Guard and further claims he was allowed to leave the Army National Guard before the end of his obligated service after his mother was diagnosed with terminal cancer. The Applicant submits a copy of his NGB Form 22 , Report of Separation and Record o f Service dated 16 December 1991, to substantiate these statements.

In response to the Applicant’s claim he was “allowed to leave the Army early ” , during the NDRB review it was note d the NGB Form 22 submitted by the Applicant appears to be materially altered when compared to the NGB Form 22 , with the same date , contained in the Applicant’s official military performance file . Furthermore, statements made by the Applicant on his DD-293 Application conflict with the evidence contained in his military record of service concerning this period of service. T he NGB Form 22 submitted with the Applicant’s DD-293 Application reflect the “Authority and Reason” for separation to be “NG R 600-200 ” , while the NGB Form 22 contained in the Applicant’s official military performance file reflects a more detailed reason , specifically “NG R 600-200 PARA 8-27G UNS A TISFACTORY PARTICIPAT [ sic ] .” The copy submitted by the Applicant does not contain the narrative portion indicating the ‘ unsatisfactory participation ’ and it appears this narrative description has been covered up during the copying process for the documentation submitted to the NDRB . While it is noted the Applicant did receive a “General (Under Honorable Conditions)” discharge, the discovery of this error places the integrity of received documentation from the Applicant into question. This error is clearly not a copy machine mistake as great car e has been taken to ensure the continuity of the NGB form ’s lines are maintained on the altered document . Th e unaltered copy clearly shows the Applicant was not discharged in order to spend time with his mother but rather was discharged for failure to fulfill his reserve drill participation obligation , for whatever reason . The narrative portion stating ‘unsatisfactory participation’ establishes the fact that early in the Applicant’s military career he developed a trend of not being present at his command, regardless of the reason. B ased on the factual inaccuracies in the Applicant’s statements and the altered document submitted as evidence ( which may be a violation of the U.S. Code, Title 18, Section 1001 and is punishable through fines , imprisonment, or both ) the NDRB did not view the Applicant’s service i n the Army National Guard a s sufficient basis for a discharge upgrade.

The NDRB did consider the Applicant’s service in the Marine Corps in deciding if an upgrade was warranted based on his record of service . The Applicant’s service record shows he pe rformed well in recruit training graduating as the Platoon Guide of his Platoon , but then went into a period of UA lasting 51 days. The NDRB notes the punishment received for this UA was extraordinarily light, consisting of forfeiture of pay in the amount of $217 , restriction , and extra duties for 14 days. The Applicant could have been punished by a punitive discharge, up to one year in confinement, and total forfeiture of pay. Furthermore, the Applicant was promoted to Lance Corporal less than one month following his NJP while he was assigned to Marine Combat Training at Camp Lejeune , NC. This action is almost unheard of, especially for a Marine in a training environment .

After returning to the Marine Corps from his UA status , the Applicant was allowed to complet e Marine Combat Training and Military Police School, and then he checked into his first permanent duty station aboard Marine Corps Base, Quantico, VA . Within hours of his arrival the Applicant entered into a second period of UA, this time lasting 71 days. The Applicant turned himself in to the military authorities and served aboard Marine Corps Base, Quantico , VA for about one month before he requested, and was subsequently granted, an “Under Other Than Honorable Conditions” discharge in lieu of a trial by court-martial. For the edification of the Applicant, an “Under Other Than Honorable” conditions discharge is appropriate when the basis for separation is commission or omission of an act that constitutes a significant departure from the conduct expected from a service member. A UA for 71 days constitutes a significant departure from the conduct expected from a Marine Corps MP. The NDRB rejects the Applicant’s contention his record of service is sufficient to warrant an upgrade. The Board determined the characterization of service received, “Under Other Than Honorable Conditions”, was an appropriate characterization considering the overall length of service and the UCMJ violations involved (UA for 71 days) .

Issue 6: (PROPRIETY) RELIEF NOT WARRANTED. The Applicant contends he is entitled to a discharge upgrade because his discharge was not processed in accordance with regulations. Specifically he contends he was forced by his commanding officer to sign his request for separation in lieu of a trial by court-martial. The NDRB determined the Applicant’s request for separation was signed under the advice and guidance of military counsel with whom the Applicant stated he was “completely satisfied”. The NDRB also noted the Applicant waived his right to submit a statem ent to the separating authority. Had he elected this right he would have been able to make a written statement claiming he had signed the request under duress ; it also would have been the appropriate venue to amplify other concerns regarding the discharge process if he felt they were not in accordance with regulations , i.e., the claims the discharge was too harsh . T he fact is the Applicant requested his separation and had competent military counsel who could have raised issues of impropriety at the time if they were valid concerns and disclosed to him as concerns by the Applicant. Based on this, t he NDRB declined to consider the other contentions relat ing to alleged improper conduct by the Applicant’s commanding officer in regards to the Applicant’s discharge as decisional issues . This includes, but is not limited to, claims the Applicant could have been retrained in another MOS and claims the Applicant could have been retained as a Military Policeman. These issues are technically beyond the scope of the NDRB to adjudicate and rested solely with the service headquarters level experts who manage and assign military personnel . The NDRB determined the record of evidence does not support the Applicant’s claim he was forced by his commanding officer to sign his request for separation. The awarded discharge was appropriate; there is no evidence to support claim the discharge process was not do ne in accor dance with military procedures or regulations.

Issue 7: (EQUITY) RELIEF NOT WARRANTED. The Applicant contends he is entitled to a discharge upgrade based on his post-service conduct. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation, which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service. Outstanding post-service conduct, 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, is considered during Board reviews. Documentation to help support a post - service conduct upgrade includes, but is not limited to: A verifiable continuous employment record; marriage and children’s birth certificate (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; and documentation of a drug-free lifestyle. The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case by case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character.

The Applicant provided character references, evidence of community service activity, evidence of voluntary assistance to the Philadelphia Police Department in apprehending a suspect , and evidence of employment. The NDRB understands and

appreciates the Applicant’s desire and attempted efforts to reenlist in the Marine Corps ; however, this is not considered post-service conduct, as such . Many former Naval service members desire and attempt to reenlist into military service again only to discover their discharge characterization and reenlistment code bar them from future military service unless waived at the appropriate service headquarters level . The NDRB has no authority to conduct such waivers and this matter is left entirely at the service headquarters level and their recruiters.

While the Board applauds the Applicant’s post service efforts of community service and his recent assistance to the Philadelphia Police Department in apprehending a vehicle hit and run suspect , the Board determined the evidence of overall post-service conduct is not sufficient to warrant a discharge upgrade. To warrant an upgrade the Applicant’s post service efforts need to be more encompassing and documented . The Applicant could have produced additional evidence as stated in the above paragraph with the full understanding completion of these items alone does not guarantee an upgrade. The Board determined the characterization of service received, “Under Other Than Honorable Conditions”, was an appropriate characterization considering the length of service and the UCMJ violations involved, and based on the limited post service documentation provided an upgrade would be inappropriate. Should the Applicant obtain additional evidence or post service documentation he may wish to apply for a personal appearance hearing . There are veteran’s organizations, such as the American Legion, willing to provide guidance to assist former service members in their efforts to obtain a discharge upgrade.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record, Discharge Process and evidence submitted by the Applicant, the Board found

ADDENDUM: Information for the Applicant

 Complaint Procedures : 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 to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC 20301-4000 . 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 . ”

Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provi ded the 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 additional evidence related to this discharge. Representation at a personal appearance hearing is recommended but not required. If a former member has been discharged for more than 15 years , has already been grante d a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

 Service 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.
Employmen t / Educational Opportunities : 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 of the propriety and equity of the discharge.

Reenlistment/RE-code: Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. 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.
Medical Conditions and Misconduct : DoD disability regulations do not preclude a disciplinary separation. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation or is referred to a court-martial fo r 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. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other medical related reasons. ” Only the Board for Correction of Naval Records can grant this type of narrative reason change.
Automatic Upgrades - 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 may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.

Issues Concerning Bad-Conduct Discharges (BCD ) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a special court-martial, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed. The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership: 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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