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

ex-LCpl, USMC
Docket No. MD01-00665

Applicant’s Request

The application for discharge review, received 010416, requested that the characterization of service on the discharge be changed to honorable or 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 010719.  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 CONDITIONS OTHER THAN HONORABLE/Separation in lieu of trial by court-martial, authority: MARCORSEPMAN Par. 6419.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  Why I Believe My Second Discharge Should Be Recharacterized And/Or Upgraded

Finally; being that V.A.-adjudication denied disability compensation for the claimant's substantial visual impairment; back-injury; abdominal; and neck-trauma conditions on the grounds that they were "not well grounded," due to an administrative decision concerning his second period of service; we would do well to address that issue in the closing portions of this report.  We will also send a copy of this paper to the Navy Discharge Review Board, 720 - Kennon S.E. Room 309 Washington Navy Yard, Washington D.C. 20374-5023 in the hope that they will upgrade, or recharacterize the veteran's discharge from his second period of service (1985-87) deleting the terms "other than honorable conditions." Some 650,000 "bad” discharges of various types were handed out during the course of the Vietnam War.  According to VA rules: Dishonorable and some bad-conduct discharges issued by general courts martial bar VA benefits.  Benefits eligibility (sic) of veterans with other bad conduct discharges and discharges described by military branches as 'other than honorable' is determined by VA.  After reviewing the facts of each specific case, VA decides whether separation from service was under dishonorable or other than dishonorable (sic) conditions" (quoted from The Federal Benefits for Veterans and Dependents handbook, p. 2; 1993-edition.)  In other words, so long as the veteran doesn't receive a "dishonorable, or "bad-conduct" discharge issued by general or special courts martial respectively; it's a judgement call as to whether or not VA will award benefits.  Being that they didn't award him benefits based on these petty behavioral disorder problems just goes to show, again, that they will spare no effort; or fail to exploit any opportunity or legal/technical "loophole' in order to deny the claimant his benefits.

The veteran's second period of service lasted for about a year and a half from Sept. 1985 to April 1987.  During this tour he was involved in one or two instances of what they call "drunk and disorderly behaviour" as e.g., when he got into brawl with his "drinking buddy;" a one Staff Sergeant J-----; in a bar in Okinawa.  The Newark, N.J., VA administrative decision states in the midst of talking about "gunshot" wounds that: "The service records show that the veteran was subject to two non-judicial punishments during his second tour of service.  The first instance involved being drunk and disorderly, and assaulting a noncommissioned (sic) officer.  The second was for being drunk and disorderly and bringing discredit upon the armed forces"... end-quote.  First of all; the claimant himself was a "noncommissioned officer" at that time.  That is, a corporal.  J_ was a staff noncommissioned officer (blew it again; didn't they?) Secondly, J_ was out in the same bar; the "Red Ruby;" drinking with the claimant.  They had known each other going all the way back to 1980, or '81, when they both served together with Bravo Company 2nd Assault Amphibian Battalion, 2nd Marine Division, Camp Lejeune, North Carolina.  When they had met up with each other again in Okinawa, some seven years later, J_ and the claimant decided to go drinking out in town and they ended up at the Red-Ruby.  J_ was not in uniform; on duty; or acting in any official capacity when this altercation occurred.  They were both out drinking, they got into a brief scuffle, and J_ ended up getting "kicked in the face," congratulations.  It takes "two to tango."  They were both involved in fighting and "drunken disorderly behaviour."  How come J_ was never "charged"?  Just because the claimant may or may not of gotten the better of J_ in that brief brawl doesn't mean that he started that fight.  The winner of a fight isn't necessarily the instigator of a fight.  J_ himself offered to testify on the claimant's behalf at a "court-martial' that they were threatening when he heard about it, but the claimant had already accepted an administrative discharge (i.e., not a "bad conduct" discharge) under "other than honorable" conditions instead on the advice of his lawyer, a one "boot" lieutenant, who was appointed by the court.  That's what happened.  But you'd never learn it from listening to the VA.

Also; how come social security's H_ M_ T_ never mentions these incidents in his report?  He said that the claimant had 'no social functioning impairments."  Well; isn't "drunk and disorderly behaviour" a "social functioning impairment"?  If it's not, then what is?  He didn't say.  But again, they can't have it both ways.  They can't say on one hand that the veteran has drunk and disorderly "behavioural" problems and then turn around and say that he was no "social functioning impairments." Also, we find it passing strange that the Marme Corps would consider these measly little incidents as bringing "discredit" upon the Armed Forces of the United States, when the Marine Corps itself was organized by a bunch of drunks and bruisers in a bar called "Tunn tavern' down in Philadelphia!  At least that's what they told the veteran and everybody else back at Marine Corps boot-camp, Parris Island, South Carolina some twenty years ago  And; for the record, the reason why the veteran accepted that administrative discharge in lieu of a "special court-martial" was because it was already obvious by that time that they were discriminating against him due to his "past record." For example, in a "page-eleven" entry (otherwise known as "administrative remarks" 1070) going back to the end of his first period of service (1980-1984) while serving under a one Sergeant Major T_ L_ M_ it states, quote: "Same named marine appeared before the marine of the quarter board this date but was not selected due to past record, although he was highly recommended by the board"... end-quote.  Why did the marines allow the veteran back into the corps only to discriminate against him due to his "past record"?  This is the same Marine Corps who gave the claimant back in 1981; along with a one Pfc L_; both of whom were teenagers at that time; six months at hard labour (to include pre-trial confinement) for the "heinous crime" of bumming a cab ride which they called "conspiracy to commit larceny."  And this after the civilian taxi-cab driver; a one Mr. R_ A_ J_; lied and said that they tried to "rob" him of his money ("twenty dollars.")  Well; the "armed robbery" charges were subsequently dropped because the lying cab driver never showed up for court.  How come Mr J_ was never charged with making a false report or accusation?  Here were two teenagers faced with years of hard-time at the Federal-penitentiary at Fort Leavenworth, based on the mere lying accusations of one civilian!  That's the marines "taking care of their own"?  Instead of giving the claimant and his former acquaintance, Pfc L_, six months at hard labour after a "special court-martial", including fines and reductions, they should've given them a citation for showing initiative.  All they were trying to do was to get back to base on time in order to make formation.  Yet this bogus "special, court-martial for "bumming a cab-ride" ruined the veterans's military career from the very beginning because they continued to discriminate against him for it throughout his six years of active-service.  And all this based on the lying accusations of one civilian.  As a closing note, there is a gross error in the charge-sheet concerning the incident at Okinawa.  In that report dated 21 Jan. '87 it states that the claimant kicked SSgt. J_ in the face while at the "Military Police Department/North holding area" on Camp Hansen.  But another report states that the brawl occurred at the Red Ruby lounge out in town (i.e., Kin Cho Kin, Okinawa) which it did, and which is a long way off from the base.  In any event, how could the claimant "kick" J_ in the face when the former was in a "holding area"?  J_ was never arrested!  He went on his merry way back to base shortly after the incident out in town.  How could the claimant "kick" J_ in the face in front of the military police when the former was in a "holding cell" and the latter was never even arrested?  If the claimant would've had a decent lawyer at the time; he probably could have easily beaten these bogus charges even under the draconian Uniformed Code of Military Justice or "UCMJ."  It should also be noted that the claimant never received any drug & alcohol rehabilitation therapy for his purported "drunk and disorderly" behavioural problems.  There is also an error in the re-enlistment code concerning his first tour.  The veteran also had a "paraphernalia" charge during his first period of service in 1981.  They only gave him a "summary" court-martial for that.  Yet, he should've never been assigned a reenlistment code "RE- I Alpha," according to their own rules & regulations at the time.  If he were never assigned an RE-l A he would never have re-entered service and subsequently been given an "other than honorable discharge.  He also probably never would've developed back-problems, neck trauma, and increased visual impairments.  And he certainly never would've developed a severe gastro-intestinal bleed wherein he lost at least four units of blood.  It is our understanding that " a discharge is considered to have been proper unless the discharge review determines either of the following: 1) There is an error of fact, law, procedures, or discretion that prejudiced the rights of the individual. 2) There is a change of policy that requires a change of discharge.  A discharge is considered to have been equitable unless: 1) The policies and procedures under which the individual was discharged are materially different from current policies and procedures and the individual probably would have received a better discharge if the current policies and procedures had been in effect at the time of discharge. 2) The discharge was inconsistent with the standards of discipline.  3) The overall evidence before the review board warrants a change of discharge.  In arriving at this determination, the discharge review board considers the quality and length of service performed, the individual's physical and mental capability to serve satisfactorily, abuse of authority that may have contributed to the character of the discharge issued, and documented discriminaory acts against the individual"... end-quote. (quoted from The Veteran's Guide To Benefits, p. 306, C1989; emphasis ours.)  We believe that due to any of the above reasons; particularly those highlighted in bold print; the veteran's second discharge (1985-87) should be up-graded to at least a "general" discharge and/or recharacterized deleting the terms: "Other than Honorable."

According to the aforementioned Federal Benefits for Veteran's and Dependents (1993-edition) pp. 69-70; an appeal for discharge review must be filed within 15 years from the date of separation; a time-limit we are still well within concerning his second period of service.  Note: This is not a request for a re-enlistment code "change;" but rather a request for recharacterization of his second discharge because of the error in the re-enlistment code from his first tour.  This error would also have relevance to the regulation above talking about an individual being physically and "mentally" able to serve satisfactorily.  As would the fact that he never received any drug & alcohol rehabilitation therapy for his purported "drunk & disorderly" behavioural problems.  There is or was also a documented pattern of discrimination against the individual (e.g., they probably also wanted him out after they discovered the re-enlistment code error.)  And that's exactly what a one First Sergeant S_ B_ told him when he was administratively reduced to lance corporal... he said: "you should've never been given an 'RE- IA' re-enlistment code"... or words to that exact effect.  The last time we saw Mr. B_ he was running a furniture shop out in Elkins, West Virginia, back in 1995.  In fact, I've still got his calling card that he gave me right here in front of me.  Also, these incidents were not the result of "willful" misconduct, as the VA maintains.  The veteran didn't wake up in the morning and say to himself that he was going to deliberately "kick, J_ in the head" that night... it was a spontaneous reaction.. and, according to the statutes:  "Mere technical violations of police regulations or ordinances will not per se constitute willful misconduct"... end-quote.  And we don't believe that one or two minor instances of "drunk and disorderly" behaviour warrants an "other than honorable" discharge in an organization that was founded by a bunch of drunks and bruisers in a bar.  (And that's not what the veteran "says;" that's the History of the Marine Corps.)  Getting into a brief brawl with one's "drinking buddy" isn't what we would call the "crime of the century."  And we believe that forcing him out because of this incident is inconsistent with the standards of military discipline.

Footnote:.. Since this report was compiled we received notice from the VA-adjudication in Manila; 28 Oct. '00 that they denied all of this veteran's claims for increased disability compensation including the staph-infection that he initially picked-up in an unkempt, VA hospital in Quezon City in 1991.  We went through their reports; C_ is still listing the "Bangs" Avenue organization in BLOCK LETTERS.  Their "reports;" as expected; are filled with errors... e.g., C_ says "no left knee injury is in the service record," or words to that exact effect... wrong... wrong... it's in there; this veteran has a complete file(s) of both his military medical records and service record book (the latter on micro-film)... the record is dated 14 Sept. 1981.i.e., during his first period of Honorable service, and has to do with a motor vehicle accident.  The record states... "[patient] involved in mva (motor vehicle accident) this day.  PT thrown into dash banging left-knee"... end-quote.  They also talk about "no treatment" in their reports... that's why this veteran is submitting quite literally hundreds of numerous used prescription medicine wrappers from the past years.  We also find it utterly disingenuous of them to talk about "no treatment" when the VA itself doesn't provide "treatment" for non-service-connected injuries nor can the veteran afford too much "treatment" being that his income was only two hundred and sixty dollars a month for the past years... he has no medical insurance.  They also just awarded an ex-sailor; who had a bad conduct discharge; "100% disability" who went from nothing to "100%" in two and a half or three years (i.e., 1996-99.)  This marine veteran has known that "swabby" (sailor) for the better part of the past decade... he has no scars; no surgeries; no broken teeth; no broken bones; no wounds; no missing limbs; not so much as a "scratch"... Yet he goes from nothing to "total disability" in less than three years?  That guy ain't "disabled."  And we doubt very seriously that the aforementioned swabby went to more tests or "treatment" in less than three years than this marine veteran has in the past decade (i.e., since 1991.)  For verification of this anecdotal evidence or intelligence see attachment dated: 16 April '96 VA form 21-526.  This is another obvious, logical, example of the blatant discrimination against the veteran by the VA/SSA offices in Manila.  Also, according to a recent "Fox News" report the military is looking for people who served at Camp Lejeune, N.C., from the periods 1968-1985...  There was some kind of toxic waste dumped into the water-supply by civilian contractors there... perhaps this would explain the alarming rash out-breaks that the veteran has spoken of during the past decade... for what it's worth I was there (1980-85) and this Statement of 7he Case still stands and we're terminating our domicile in the islands and crossing over the into Cambodia... end-transmission.

Documentation

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

Picture
Statement of the case against the Department of Veterans Affairs (8 pages)
Partial copy of criminal investigative report
Eleven pages of Apocalypse Now
Certification of residence since 1989 dated March 24, 2001
Picture
Copy of DD Form 214
Letter from applicant to Veteran's Affairs/Adjudication dated May 16, 2001
Letter to applicant from Department of Veterans Affairs dated March 22, 2001
Letter to applicant from an attorney dated February 16, 2001
Letter from applicant to attorney dated March 6, 2001
Eleven pictures
Letter to applicant, undated
Certificate of copyright registration dated October 24, 1997
Two books titled Studies in Samadhi

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		800116 - 840625	HON
	Inactive: USMCR(J)		791229 - 800115	COG
	             USMCR		840626 - 850912	HON

Period of Service Under Review:

Date of Enlistment:  850913		Date of Discharge:  870408

Length of Service (years, months, days):

	Active:    01  06  26
	Inactive:  None

Age at Entry:  23			Years Contracted:  3

Education Level:  10 GED		AFQT:  72

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3*			Conduct:  4.2*

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR

Days of Unauthorized Absence:  None

*Mark extracted from SJA's letter dated 12Mar87.

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

UNDER CONDITIONS OTHER THAN HONORABLE /Separation in lieu of trial by court-martial, authority:  MARCORSEPMAN Par. 6419.

Chronological Listing of Significant Service Events:

850913:	Applicant reenlisted for 3 years.

870108:	Message:  Primary diagnosis: upper gastrointestinal bleeding, secondary: alcohol.  Applicant is presently enrolled in Level II alcohol rehabilitation treatment.

870225:	Applicant, having consulted with counsel certified under UCMJ Art 27b, requested discharge for the good of the service to escape trial by court- martial.  In the request the applicant noted that his counsel had fully explained the elements of the offenses for which he was charged and that he understood the elements of the offenses.  He further certified a complete understanding of the negative consequences of his actions and that characterization of service would be under other honorable conditions.  The applicant admitted guilt to the following violations of the UCMJ, Article 128: Assault to a staff noncommissioned officer on 16Dec86 and Article 134 (2 specifications): Drunk and disorderly on 16Dec86 and 12Feb87.

870312:	SJA review determined the case sufficient in law and fact.

undated:	GCMCA [Commanding General, 3d Force Service Support Group] determined that applicant had no potential for further service, that separation in lieu of trial by court-martial was in the best interest of the service, and directed discharge under conditions other than honorable by reason of conduct triable by courts-martial.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 870408 under conditions other than honorable in lieu of trial by court-martial (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).

In considering the applicant’s issues, the Board found a significant discrepancy to exist between the applicant’s statement to the Board and the official record of the events leading to his plea for discharge in lieu of trial by court-martial.  The record reflects the applicant was charged with and plead guilty to two specifications of violating Article 134, UCMJ, drunk and disorderly, at the Club Lucky, Kin Cho, Kin, Okinawa, Japan on 16 December 1987, and again at Kin Cho, Kin, Okinawa, Japan on 12 February  1987.  Further, the applicant was charged with and pled guilty to violating Article 128, UCMJ, assaulting SSgt J_, a staff noncommissioned officer at Camp Hansen, Okinawa, Japan on 16 December 1987.  The applicant’s account of the events differs from the record in that he recalls assaulting SSgt J_ at Kin Cho, Kin, Okinawa, whereas the record shows the assault took place aboard Camp Hansen, Okinawa, Military Police Department, in a different context than that related by the applicant.  Relief on the basis of the applicant’s argument that a drunken fight between two Marines does not bring discredit upon the Marine Corps, since the Marine Corps was established in Tun Tavern in Philadelphia is denied.

The applicant’s second issue concerned his belief that he was discriminated against due to his misconduct in his first enlistment.  This Board is authorized to examine only the enlistment during which the other than honorable discharge was awarded.  The Board did note the Special Court-martial, the Summary Court-martial, and the NJP during the first enlistment, however, informs the applicant the charges preferred against him and his subsequent plea of guilty during his second enlistment were sufficient justification for his other than honorable discharge characterization, without considering the misconduct in his first enlistment.  Relief on this basis is denied.

The applicant’s third issue discusses his belief that he was issued an erroneous RE code at the expiration of his first enlistment, and so was allowed to reenlist, which enlistment subsequently resulted in his other than honorable discharge.  The Board finds that the RE code assigned following the enlistment, which expired on 850912, is not decisional by this Board and not germane to the charges and plea which led to the applicant’s discharge under other than honorable conditions.  Relief on this basis is denied.

In a statement signed in his own hand on 870225, the applicant stated, “I hereby request separation under other than honorable conditions, in lieu of trial by special court-martial….  I am completely satisfied with the advice of my lawyer….  I completely understand that if a discharge under other than honorable conditions is  approved, I may be deprived of virtually all veteran’s rights otherwise provided to me…I also understand that I may expect to encounter substantial prejudice in civilian life in situations wherein the character of my service in, and subsequent discharge from, may have a  bearing.  Nevertheless, I am convinced this request is in my best interest.”  The applicant requested an administrative discharge under other than honorable conditions in lieu of a trail by court-martial.  He consulted with counsel and was fully advised of the implications of his request.  The applicant understood that if he were discharged under other than honorable conditions, it might deprive him of virtually all veterans' benefits based upon his current enlistment, and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received therefrom may have a bearing.  

The applicant stated he understood the elements of the offenses with which he was charged.  He admitted he was guilty of violating the Articles of the UCMJ under which he was charged. The applicant’s misconduct, warranting separation for misconduct due to a pattern of misconduct and the commission of a serious offense, is clearly documented in the service record and could have resulted in the award of a Bad Conduct Discharge by a Special Court-Martial.  The applicant’s counsel advised him of this possibility and the applicant chose to request separation under other than honorable conditions to escape a punitive discharge.  The Court-Martial convening authority accepted the applicant’s request and he was discharged as he requested.  No other characterization or Narrative Reason for Separation could more clearly describe why the applicant was discharged.  To change the Narrative Reason for Separation would be inappropriate and the applicant’s dissatisfaction with the nature of his discharge does not provide a legitimate basis to alter history.  Relief denied.

The Board disagrees with the applicant’s assertion that his overall service record warrants an honorable discharge.  When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as honorable.  Under other than honorable conditions is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  While the applicant did have good proficiency markings, his service was marred by offenses triable by court-martial on two occasions and adverse counseling entries on other occasions.  The applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful disobedience of the orders and directives which regulate good order and discipline in naval service, and falls short of that required for an honorable characterization of service.  An upgrade to honorable would be inappropriate.  Relief is therefore denied.

The NDRB recognizes that serving in the Marine Corps is very challenging.  
Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country.  It must be noted that most Marines serve honorably and well and therefore earn honorable discharges.   In fairness to those Marines, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due.  While the NDRB respects the fact that the applicant tried, his service is equitably characterized as being performed under other than honorable conditions. Relief is not warranted.

The applicant details medical issues not satisfactorily resolved by the VA, and the Board sympathizes with the applicant’s medical problems, however, medical issues are non-decisional by the NDRB.   Relief on this basis is denied.

The following is provided for the applicant’s edification.  The NDRB is authorized to consider outstanding post-service conduct, 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.  However, there is no law or regulation that provides that 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.  Normally, to permit relief, an error or injustice must be found to have existed during the period of enlistment in question.  No such error or injustice is evident in the applicant’s service record. 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.  At this time the applicant has not provided sufficient documentation of good character and conduct.  Therefore no relief will be granted.  The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is highly recommended but not mandatory.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16C), Change 2, effective 15 May 84 until 26 Jun 89.

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 128, assault on a staff non-commissioned officer.

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