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

ex-LCpl, USMC
Docket No. MD01-00598

Applicant’s Request

The application for discharge review, received 010328, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010906.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.6.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. 1, J_____ K. P____ ___-__-___, would like to make the following statement concerning what I feel to be an unfair characterization of discharge from the U.S. Marine Corps, on September 17, 1999, based on what is believed to be a reprisal to my rebuttals of 3 different Fitness Reports written concerning the same situation.
In Oct. 1998, 1 committed an offense that was chargeable under the UCMJ.  While as a Canvassing Recruiter assigned to Recruiting Station (RS) Little Rock, Recruiting Sub-Station (RSS) Texarkana, I had been separated from my wife.  During the separation, I had a sexual encounter with a female assigned to the Delayed Entry Program.  After the encounter, I assigned her to another recruiter, broke all contact with her and tried to put my mistake in the past.
On 5 Feb. 1999, an investigation was conducted by Capt. M____ (RS XO).  I admitted responsibility for my actions and made no excuses for my conduct.  I then informed my wife of the situation.  She then wrote a 5 page letter, sealed it in an envelope so that I could not read it, addressed it "To whom it may concern", and asked me to deliver it to Little Rock.  I delivered the letter to SgtMaj. M______.  After reading it, he submitted it on my behalf to Maj. E_____ (RS CO and Reporting Senior).  Once the investigation was concluded and the facts presented, Maj. E____ decided to conduct NJP and charge me with Articles 92 and 134 (adultery).  Maj. E_____ informed me that my NJP was to be conducted at a Reserve Center in Memphis, TN. during a break in a training session.  Although I lived more than 6 hours from Memphis, I was not provided transportation nor was I given directions to the Reserve Center.
On 12 Feb.  I drove my personal vehicle from Texarkana, TX to Memphis, TN.  Before my NJP was conducted, I was stopped in a passageway by Maj. E____.  He asked me if a fine of 1/2 months pay for 2 months would cause a severe strain on my family.  During the NJP I plead guilty.  Maj. E____ told me that my punishment was to be a fine, relieved from recruiting duty, an adverse Fitness Report and be returned to Camp Lejeune, NC to continue my service.
After receiving my punishment, I was instructed by Maj. E_____ to drive back to the RS HQ in Little Rock, sign the Unit Punishment Book, complete some personal information for my Fitness Report, write a rebuttal admitting responsibility, and be placed on leave while awaiting orders back to Camp Lejeune.  A few days later I returned to Little Rock, signed the completed Fitness Report, made a copy for my records and returned home to Texarkana, TX.
About I week later, Maj. E____ called my home and told me that Col. M___ (District CO and Reviewing Officer) did not approve of the Fitness Report.  I was told that Col. M____ said that the report was "not adverse enough" and wanted it changed.  Maj. E_____ then read 3 written remarks that he was going to change.  The changes, while more adverse, seemed relatively minor, so I agreed.  A-fter our conversation I realized that he did not mention that I needed to return to Little Rock to sign the new report.  Assuming that he simply forgot, I returned to Little Rock the next morning.  After comparing my copy of the I st report to the 2nd report, I discovered that there were not 3, but a total of 15 changes.  Many of the changes had no clear relation to what I was charged with.  Some of the differences included lower markings in Communication Skills, Initiative, and Professional Military Education.

At that time I showed the reports and had discussions with SgtMaj. M_____ and Capt.  M_____.  I was advised by both that I should write a new rebuttal that outlined the differences.  Once I completed the 2nd rebuttal, I made a copy and submitted it to Maj. E_____.  After reading my statement, he then wrote a 3rd report and placed 4 of the marking to their original position on the 1st report.  He asked me if it would change my rebuttal.  I informed him that it would, so I wrote a 3rd rebuttal that removed the 4 markings that he had changed.  I then made a copy of the 3rd report and submitted it back to Maj. E____.  He then called me into his office and asked me, "Is this what you want to do?" He also stated that my rebuttal would "upset Col. M___", and "this could come back on you".  I told Maj. E_____ that I have a right to make a rebuttal without fear of a reprisal.  At that time I felt that the 2nd and 3rd reports were actually Col.  ______'s words written by Maj. E_____'s pen.  I believed that if Col. M____ didn't approve of the report written by Maj. E____, there is a section for the Reviewing Officer to write his comments.  After our meeting, I returned to Texarkana to await orders.
On or about 23 March, 6 weeks after my NJP and 4 weeks after my signing of the 3rd report, I received a call at home from GySgt S____ (RS Admin Chief).  He instructed me to return to Little Rock to sign some paperwork for my discharge.  He told me that I was being discharged under other than honorable conditions for the commission of a serious offense.  Until that point, a discharge was never included or even discussed as part of my punishment.  I then remembered when Maj. E_____ told me that my rebuttal would "upset Col. M___", and "it could come back on you".
I drove to Little Rock the next morning and requested Legal Assistance and an Administrative Separation Board.  I contacted MCRD San Diego and was assigned to Capt. T.J. H____.  He told me that we would be notified of a date for the board within a few weeks.
On 12 April, 3 weeks after requesting legal assistance, I was taken off leave and instructed to return to work in the Recruiting Office in Texarkana.  A week later, I contacted Capt. H____ in San Diego.  He had assumed that the discharged request had been dropped since he still hadn't received any paperwork on my case.  On 30 April, I was informed that Col. M____ was going to move forward with his request to have me discharged under other than honorable conditions.  On I I May, 7 weeks after my request for a board and almost 4 months after my NJP, I was informed that the board was to be held on 4 July in San Diego and I was 'to be flow there a few days prior so that I would have time to discuss the facts of my case with Capt. H___.  I arrived in San Diego the evening prior to the board.
During the board, all testimony, with the exception of mine, was conducted via speaker phone.  Maj.  E____ testified that he had no knowledge of having written 3 Fitness Reports.  Once he was informed that I had provided the board members with copies of the 3 reports, he stated that he remembered 2 but knew nothing of the 3rd.  Later, SgtMaj. M_____ and Capt M____ testified that they had both personally seen the 3 reports because I had shown them and asked for advice as they had been written.  Maj. E____ stated that after he submitted the I st report, Col. M___ rejected it because there were some discrepancies.  He testified that the report was changed because of those "discrepancies", not because it was "not adverse enough".  Capt. M___ testified that even though Col. M___ didn't know the facts of the case, he felt that Maj. E____ didn't
punish me harsh enough.  It was assumed that since they couldn't go back and change my punishment after the NJP, they would go back and change the report, so Col. M___ influenced Maj. E_____ to change the report to make me look as bad as possible It was argued that the reason why I was not asked to return to Little Rock to sign the new report is because the new Fitness Reports are 5 pages long and the only place for me to sign it was on the last page.  Therefore, any number of changes could be made to the previous 4 pages and I would have never known.  The argument was made that the I st report was to Maj. E_____ satisfaction, the 2nd report was to satisfy Col. M___, and since I had returned to Little Rock and discovered the significant differences, a 3rd report was written by Maj. E____ in an attempt to satisfy both me and Col. M__.
Maj. E____ testified that a discharge was discussed as part of my punishment, but he didn't know why I was not notified until 6 weeks after my NJP.  Capt. M___ and SgtMaj. M____ 'testified that a discharge was never discussed.  They believed that the request for a discharge was a reprisal to my rebuttal of the 2nd and 3rd reports.  Maj. E____ then testified that a discharge was being sought by the Western Recruiting Region (VirRR) HQ in San Diego.  In fact, GySgt S_____ had previously shown me an email from Capt. T____ (District HQ) to Maj. E____ stating that Col. M____ was going to push for the discharge and I should be scheduled for a final physical and separation classes in case it gets approved.  That e-mail was dated 19 March (6 weeks after my NJP).  Capt. M_____ and SgtMaj. M____ testified that there was no discussion of a discharge until that date.  At that time, Capt. M____ discussed that e-mail and my situation with SgtMaj. M_____.  He then sent an e-mail to Maj. E___ that stated that this course of action was "unprofessional and an Ad@nSep Board will probably decide against the request".
it was also discovered during questioning that the only evidence submitted on my behalf (the 5 page letter from my wife) had not been included as evidence to the board.  A board member called the District HQ in New Orleans and was told that they didn"t know of the letter.  GySgt S____ testified that he had personally sent the letter with all of the other paperwork to New Orleans.  During a second call to New Orleans, the senior board member stated that they would not proceed without the letter.  Within 15 minutes, the letter was taxed to San Diego.
Arguments were made that INJP was reserved for a Commanding Officer to handle "minor infractions" of the UCMJ, but once I rebutted the 2nd and 3rd reports, the offense that I had already been charged with and punished for had been upgraded to "a serious offense." During a recess, a IstSgt on the board suggested that my NJP had been conducted wrong because I was told what my punishment was going to be before I had officially entered a guilty plea.  He also asked why none of the Marines that I had requested in writing were present at the NJP.  He also questioned why I had to drive my personal vehicle 6 1/2 hours to the NJ-P without being provided transportation, directions, or allowed to fill out a travel claim upon returning.
After two days of testimony and studying the facts, the board decided and would recommend that the discharge be suspended and I be returned to the Fleet Marine Force to continue my service.

On 2 September, almost 7 months after my NJP had been conducted I was informed that I was to receive an OTH Discharge and be reduced to E-3 for the commission of a serious offense.
On 12 February, 1999, 1 accepted any and all punishment that my Commanding Officer felt was appropriate given the facts of the case and my record of service.  It was the opinion of the officers and senior enlisted Marines of my command, that I was being used to set an example of what would happen if authority was challenged.
Documentation and sworn testimony from these same Marines proved to the board that there were inappropriate procedures followed and an attempt to conceal it at my expense.
I regret my conduct as much today as I did in October, 1998.  My integrity and love for the Marine Corps had never been questioned until this incident.  I had always been promoted ahead of my peers and placed in positions of higher responsibility and trusted and respected by every Marine and Sailor that I've had the privilege to serve with.
In today’s military, does 10 years of near perfect military service suddenly become "Other Than Honorable" after I offense that was originally considered a "minor infraction" by the person who is entrusted to make those determinations?  Do Soldiers, Sailors, Airmen, and Marines really have the right against reprisal from their command when they defend Themselves against what they know is unfair and was able to prove it in a board?
I understand that it may seem odd that I have waited over a year to make this request.  I have had this statement prepared since I left the Marine Corps.  The fact is that after more than a year of phone calls and written requests, I have just now received a copy of my DD214 for submission with this request.  Six months ago I did receive a DD214 from the National Personnel Records Center, but it belonged to a Marine that was discharged from active duty two years before I was born.
In closing, I would like to again state that initially, the Commanding Officer of a military unit did not feel a discharge was appropriate and an official Administrative Separation Board concluded that a discharge was not warranted.  I am not asking for money or that there be some kind of investigation conducted.  All I request are two things:

1)	My Other Than Honorable Discharge be upgraded to a General Discharge Under Honorable Conditions.
2) 1 be allowed to retain the rank of Staff Sergeant.
Thank you for your time and consideration of my request.
Respectfully Submitted,
J____ K. P____

Documentation

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

Copy of DD Form 214
Letter from applicant's wife (5pgs)
Copy of Fitness Report (5pgs)
Copy of Addendum to Fitness Report
Copy of Fitness Report (5pgs)
Copy of Addendum to Fitness Report (2pgs)
Copy of Fitness Report (5pgs)
Copy of Addendum (2pgs)
Letter from Commanding General 
Letter from Assistant Chief of Staff, SJA (2pgs)

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		890425 - 921209	HON
		   USMC		921210 - 961204	HON
	Inactive: USMCR(J)		890413 - 890424	COG

Period of Service Under Review:

Date of Enlistment:  961205		Date of Discharge:  990917

Length of Service (years, months, days):

	Active:    02  09  12
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  54

Highest Rank:  SSgt

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

Military Decorations:  None

Unit/Campaign/Service Awards:  LOA, COC, OSRw2*, NDM, SSDR, NAM, GCM, MM(2), ASR 

Days of Unauthorized Absence:  None 

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.6.

Chronological Listing of Significant Service Events:

961206:	Reenlisted at 2D AA BN MARDIV Camp Lejeune, NC for 4 years.

990212:	NJP for violation of UCMJ, Article 92: On or about 981028, failed to obey a lawful order, DepO 1100.4A and DisIO P1130.29F par 0004, by failing to maintain a strictly professional relationship with a female poolee, violation of UCMJ Article 134: In that SSgt P_____, a married man, did at RSS Texarkana on or about October 1998, wrongfully have sexual intercourse with B_____ E. P____, a woman not his wife.
	Award:  Forfeiture of $922.00 per month for 2 months.  No indication of appeal in the record.

990324:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

990324:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

990325:	Commanding Officer, U.S. Marine Corps Recruiting Station concurring with the recommendation contained in the Administrative Separation proceedings.

990401:	Commanding Officer, 8th Marine Corps District recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  The factual basis for this recommendation was on 990222 SSGT P____ was found guilty, by his admittance, at NJP for violation of written orders forbidding sexual relationships with members of the delayed entry program.

990602:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to the commission of a serious offense, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

990820:	GCMCA [Commanding General] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 990917 under other than honorable conditions for misconduct due to the commission of a serious offense (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 and equitable (D and E).

 Issue 1.  The applicant states he has an unfair characterization of discharge from the U.S. Marine Corps based on what is believed to be a reprisal to his rebuttals of 3 different Fitness Reports written concerning the same situation. The Board found insufficient evidence of inequity or impropriety concerning command use of the applicant’s fitness report rebuttals or in the command’s administrative separation proceedings to warrant an upgrade to the type of discharge.  Paragraph 2004.3d of MCO P1610.7E authorizes reviewing officers to direct reporting seniors to modify reports that do not adhere to policy or appear to contain inflated marks.  Relief denied on this issue.

There is no time limitation between the commission of an offense and the initiation of administrative separation proceedings.  Also, a military conviction at NJP or trial by court-martial is not necessary to process a Marine for discharge under other than honorable conditions by reason of misconduct for commission of a serious offense.

The applicant states, “does 10 years of near perfect military service suddenly become "Other Than Honorable" after I offense that was originally considered a "minor infraction" by the person who is entrusted to make those determinations?  Do Soldiers, Sailors, Airmen, and Marines really have the right against reprisal from their command when they defend Themselves against what they know is unfair and was able to prove it in a board?”  The applicant’s commanding officer directed nonjudicial punishment for the applicant’s violation of orders.  The separation authority, who is higher in the chain of command, directed separation proceedings for the same offense. The separation authority’s action is not improper or inequitable. An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to the commission of a serious offense, that the misconduct warranted separation, and recommended discharge under other than honorable conditions. The separation authority did not concur with the Administrative Discharge Board’s recommended suspension of the discharge.

The discharge was proper and equitable.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the applicant’s enlistment.  Additionally, 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 the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct.  The applicant did not provide sufficient documentation to warrant an upgrade to his discharge.  He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 Aug 95 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 regulations.

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 view DoD Directive 1332.28 and other Decisional Documents by going online at “afls10.jag.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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023