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

 ex-Pvt, USMC
Docket No. MD99-00699

Applicant’s Request

The application for discharge review, received 990426, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to occupational problem.  The applicant requested a personal appearance hearing before the board in the Washington National Capital Region.  The applicant did not list any representative on the DD Form 293.  Subsequent to the application, the applicant obtained representation by the Disabled American Veterans.

Decision

A hearing discharge review was conducted in Washington, D.C. on 000815.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned an inequity, but no impropriety in the applicant’s discharge.  The Board’s vote was 3 to 2  that the discharge shall change to:  UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Minor disciplinary infractions, authority:  MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  None of my offenses fall within the examples given under the definition of an OTH discharge Under paragraph 1004 (3) (c).

2.  According to paragraph 1004 (3) (b) of the reference, My misconduct is more aptly characterized, according to paragraph 1004 (3) (b) as a general discharge.

3.  Offenses and Punishments (1070): Subject feels that there is an imposed irregularity within the contents of this page.  There are no dates and there are two separate entries.  The fact of the matter is that (applicant) had originally refused NJP and elected trial by Special Court Martial.  Under very intimidating circumstances at the time, the subject had endured and tolerated G_ viciousness.

4.  Suspension/Revocation of Driving Privileges: (Applicant) had in fact accomplished all the requirements for obtaining approval for reinstatement of his driving privileges.  According to paragraph 8. of this form, (applicant) accomplished "a Marine driving school within the one year suspension."  The original was turned over to the First Sergeant (G_) who was supposed to have had the paperwork accomplished.  On numerous occasions, (applicant) was ensured by the Chain of Command that the paperwork was processed and that he would be able to drive on the base after his one year suspension.  However, when transferred to numerous commands, he was cited on three occasions that were unduly timed and poorly justified by the chain of command at the time.  (Applicant) did not deserve to be punished.  Instead he deserved to be heard and deserved to voice his opinion and objection during the entire ordeal for he had completed the application process.  The original to this day remains somewhere with G_.  This copy was retained through the M.P. Battalion weeks before he was discharged.

5.  Base magistrate: On this day the base magistrate continued my case.  It was continued because I lacked the Driving Certificate.  Upon obtaining a copy of the certificate I was immediately reinstated.  However the chain of command still punished me.  It really does not make any sense but I refused to appeal.  It just doesn't make any sense.  If I only knew how to communicate better I would have, but I lacked communication skills.  My attitude at the time was very hostile and very intimidating.  Basically I was living on the edge.  What bothered me too was the fact that my grandfather was terminally ill with cancer.  This too had a weighing impact on my life at the time, I did not know what to do.  I had a very hard time understanding and communicating.  To this day I do not know what was influencing my actions and behaviors at the time.

6.  Request for Conditional Waiver: It was not completely understood at the time.  However, he was very understanding and listened to my every word.  He totally believed me and it seemed like there was finally a sign of relief.  Together, it was understood that if the General did not approve this form that I would need to waive my rights before the board.  With Capt. S_, it seemed that we were sure to have it our way.  So I had submitted a request mast along with some other material.  On June 3, 1994, the request was returned disapproved.  It was at this time that I contacted my district Congressman.  Unfortunately, it was too late and I was processed out of the service two weeks before my 4 year enlistment was over.

7.  Request For Conditional Waiver Returned Disapproved.

8.  Unconditional Waiver Of Administrative Discharge Board: As explained previously I had the presumption that if the Conditional Waiver was not granted that I had to waive the Administrative board.  Ultimately I was instructed by Captain S_ that I had no option but to sign the unconditional waiver and pursue the NDRB after my discharge.  At the time it seemed logical to follow the verbal instructions, but it now seems certain that the military defense attorney at the time was following direct orders from someone in a higher authority then he.

Respectfully Submitted:

Documentation

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

Five pages from applicant's service record
Copy of DD Form 214
Statement/issues from applicant dated May 12, 1999
Copy of Fee Schedule statement dated August 3, 1999
Copy of College Calendar 1999-00

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		891010 - 900724	COG

Period of Service Under Review:

Date of Enlistment:  900725		Date of Discharge:  940711

Length of Service (years, months, days):

	Active:    03  11  17
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  35

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.5 (13)		Conduct:  3.4 (13)

Military Decorations:  None

Unit/Campaign/Service Awards:  SASM with 2 Stars, NDSM, KLM, Meritorious Mast, Certificate of Commendation

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct-Pattern of misconduct (administrative discharge board required but waived), authority:  MARCORSEPMAN Par. 6210.3.

Chronological Listing of Significant Service Events:

900824:	Waiver granted for the defect in enlistment.  Applicant informed and understood and agreed to complete enlistment.

920608:	Applicant’s on base driving privilege suspended for 12 months.  Effective date of suspension 920513.  Applicant advised that he could apply for reinstatement on 930513.

920715:	Counseled:  Eligible but not recommended for promotion to CPL for the August 1992 promotion period because of a lack of good judgement and initiative.

920820:	NJP for violation of UCMJ, Article 91:
Specification: Disrespectful towards Cpl___(MP), who was in the execution of his office by displaying his middle finger in a manner commonly perceived as offensive on 0400, 920511
Violation of UCMJ, Article 134:
Specification 1: Disorderly on 0400, 920511.
Specification 2: Wrongfully offer Cpl D___ and LCpl G___ (MP's) sexual favors with unnamed females to influence their actions on 0400, 920511.
Awarded forfeiture of $300.00 per month for 2 months, restriction and extra duties for 30 days, reduction to PFC.  Not appealed.

920917:	Counseled for deficiencies in performance and conduct.  [Poor judgement and misconduct.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

920918:	Counseled: Eligible but not recommended for promotion to LCpl for the October 1992 promotion period because of a lack of good judgement.

921023:	NJP for violation of UCMJ, Article 92:
Specification: Violation of base order P5000.2H by driving a POV at the 52 Area Mess Hall, seen by Lt M_ on 1130, 921022.
Awarded forfeiture of $300.00 per month for 2 months, restriction and extra duties for 30 days.  Not appealed.

9304XX:	Applicant referred by SSgt due to statement "I wish I could just end all of this".  A: Situational stress.  P: Counseling.  Referral to anger management ______ at Family Services.

930811:	SACO evaluation for alcohol abuse:  A: Alcohol dependent.  P: Level III, strict abstinence, AA 3-5 times a week.

930816:	Counseled for deficiencies in performance and conduct.  [Failure to comply with the UCMJ.  Frequent involvement with military authorities.  Lack of judgement.  Conduct unbecoming of a Marine.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

930820:	Applicant appeared before magistrate at traffic court for driving while privileges suspended.  Noted in record indicate that applicant claimed that he thought that his privileges had been reinstated.  He alleged that he had submitted paperwork for reinstatement at his former command and that it must have gotten lost.  He was directed to reapply.  The magistrate continued the case until 930827 ( no further information found).

930823:	NJP for violation of UCMJ, Article 92:
Specification: Fail to obey a lawful order on 0137, 930809, by wrongfully driving on MCB knowing his privileges had been suspended.
Violation of UCMJ, Article 134:
Specification:  Entered based unlawfully by running the Christianitos Gate on 0137 930809.
Awarded forfeiture of $400.00 per month for 2 months, restriction and extra duties for 45 days.  Forfeiture suspended for 3 months.  Not appealed.

930823:	Counseled for deficiencies in performance and conduct.  [Failure to comply with the UCMJ.  Frequent involvement with military authorities.  Lack of judgement.  Poor attitude.  Conduct unbecoming of a Marine.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

930909:	Admitted to NARC Medical Miramar, San Diego, CA for Level III treatment.  TEMDU TX

930923:	Completion of Level III treatment.

931220:	Referred to medical due to statement: “I wish I could just end all of this.”  Patient made statement in regard to all the hassle and argument between himself and the SSgt over pending NJP.  Feels SSgt had made non verbal and verbal threats toward him.  Mostly just angry.  Is currently not suicidal and denies any desire to take his own life, denies homicide ideations as well.  No depression.  Working with problems with regimental chaplain also.  Diagnosis:  situational stress.   Plan:  Counseling, referral to anger management.

940209:	NJP for violation of UCMJ, Article 92:
Specification: Fail to obey a lawful order on 2130, 16Jan94, by wrongfully driving on to MCB CamPen, knowing his privileges had been suspended.
Awarded forfeiture of $194.00 per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

940304:	NJP for violation of UCMJ, Article 108:
Specification: Wrongfully have in the trunk of his POV, 1 yellow smoke grenade (MK18) Lot #PB-89K033-29 and had no intentions of turning it in for proper disposal on 2Mar94.
Awarded forfeiture of $416.00 per month for 1 months, restriction and extra duties for 14 days.  Not appealed.

940328:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

940408:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

940418:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  The factual basis for this recommendation was five nonjudicial punishments. 

940518:	Applicant submitted a request for conditional waiver.  Applicant waived right to a hearing before an administrative discharge board contingent upon receiving a general (under honorable conditions) discharge.

940524:	Applicant referred to MO by chaplain for suicidal and homicidal ideations.  Entry incomplete.

940603:	Request for conditional waiver disapproved.

940609:	Applicant waived right to hearing before an administrative discharge board.

940629:	SJA review determined the case sufficient in law and fact.

940701:	GCMCA [Commanding General, 1st Marine Division (Rein), FMF, Camp Pendleton] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

960102:	NDRB documentary record review Docket Number MD95-00972 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 940711 under other than honorable conditions for misconduct due to a pattern of misconduct (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper, but inequitable (D and E).  The Board found that applicant’s charges were minor in nature, primarily revolving around the applicant’s base driving privileges and therefore voted 3 to 2 that the reason for the discharge shall change to Misconduct - minor disciplinary infractions.  The Board’s vote was unanimous that the characterization shall remain the same.

In the applicant’s issues 1 and 2, the Board found that the applicant had 5 counselings and 5 Commanding Officer’s NJPs in less than a two year period from 920715 to 940304.  The applicant had proficiency and conduct marks of 3.5 and 3.4 respectively, which the Board found to be below average.  The applicant’s service is accurately characterized as having been performed under other than honorable conditions.  Relief is not warranted based on this issue.

The applicant states in issue 3 referring to the Offenses and Punishments (1070) Service record entry that “there is an imposed irregularity within the contents of this page.  There are no dates and there are two separate entries.  The fact of the matter is that (applicant) had originally refused NJP and elected trial by Special Court Martial.  Under very intimidating circumstances at the time, the subject had endured and tolerated G_ viciousness.”  In response to the applicant’s issue 3, the Board cites the applicant’s acknowledgement of rights, his election of rights, and specifically his election of NJP on 920511.  Relief is not warranted based on this issue.

The applicant’s issue 4 is a non-decisional issue for the Board.

In response to the applicant’s issue 5, the Board took into consideration the fact that the majority of the applicant’s NJPs were surrounding the revocation of his base driving privileges.  They therefore voted to change the narrative reason for discharge to Misconduct - minor disciplinary infractions.  This does not change the fact that the Board recognizes the applicant committed misconduct and should be held accountable for his actions.

In response to the applicant’s issues 6, 7 and 8 concerning his conditional waiver, the General Court Martial Convening Authority (GCMCA) has the ultimate authority to approve or disapprove a request for a conditional waiver.  This is a GCMCA’s absolute authority and the applicant has presented no evidence to indicate that his rights were violated.  No relief granted based on these issues.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210, Misconduct, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 27 Jun 89 until 17 Aug 95.

B.  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.

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

E.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 obtain a copy of DoD Directive 1332.28 by writing to:

		DA Military Review Boards Agency
		Management Information and Support Directorate
		Armed Forces Reading Room
		Washington, D.C.  20310-1809

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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		Washington Navy Yard
		720 Kennon St SE Rm 309
		Washington, D.C.  20374-5023