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

 ex-LCpl, USMC
Docket No. MD02-00837

Applicant’s Request

The application for discharge review, received 020520, requested that the characterization of service on the discharge be changed to honorable.  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 030214.  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. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  To The Members of the Review Board:

My name is (Applicant), a proud ex-Sergeant in the United States Marine Corps.  Attached along with this DD293, you will find letters written on my behalf from family, friends, coworkers, and supervisors, in addition to emails from former Staff NCO's (Staff Non-Commissioned Officers) and CO's (Commissioned Officers).  These emails were written for the VA (Veteran Affairs), however I feel they should be included in this packet because I worked with these fellow Marines just prior to my discharge.  It is my hope that all of these letters will serve to explain to you, The Board Members, who I am from my work ethics, my family values, my character, and my dependability as a marine, a civilian, and a man.

I served as a Marine from May 31, 1994 to September 02, 1999.  During this time I feel my conduct as a Marine was nothing less then Honorable.  The fourteen troop leading steps taught to me when I was reborn at Parris Island, are traits I swear and live by to this very day.  Unfortunately I was separated from my beloved Corps, due to what was called misconduct unbecoming of a Marine.  Misconduct due to a spouse who didn't care or respect my job as a Marine, but had her own selfish agenda.  If I can have a second of your time, I would like to explain in my own words my opinion of why I received my OTH (Other Then Honorable) discharge, and why I feel my conduct wasn't nothing less then Honorable.

I transferred from 29 Palms to Camp Pendleton to be closer to my family.  I chose a duty station which didn't require going on floats or six month ops, but one that would keep me close to home due to my MOS (0352).  My ex-wife just had twin sons in December of 97, and was also raising two of her own daughters.  I felt she shouldn't have had to carry that responsibility alone.  Who would have known what was in store for me in the upcoming months?  To make things more convenient, I relocated my family from off base to on base.  I worked long vigorous hours and dedicated all my free time to my family.  This seems to be were all my misfortune began.

She began to really resent my job because I was always working.  She complained verbally and often abusively on many occasions to my superiors.  About how she shouldn't have to take care of four children by herself.  There was times when I was home, she would take her daughters to her mother's house and not return for days.  Leaving me with the responsibility of my sons when I needed to be to work.  She was under the care of a physician and taking medication for anger management.  Another example of her antics was she actually tired to run us off a cliff one night.  It got so bad my Battalion CO issued a MPO (military protection order) banning me from my own home.  This would not stop her; she would come to my job continually making idle threats to people.  During all of this I never once let this effect my job as a Marine, and at the time an Infantry Squad Instructor.  Still I maintain that I did nothing which was unbecoming of a service man.

I am still living a nightmare to this day.  Since the birth of my sons, she has lied, plotted, and has been out to destroy my life.  In many ways she has succeeded.  I must live with the memory of being a Marine, instead of actual being one of the few.  It's now 2002, and I'm still picking up what's left of the piece's.  I currently have full custody of my son's, I'm divorced, I am paying all outstanding bill's remaining from my time with my ex-wife, I have a full time job, and I have just recently purchased a new car.  I am trying my best to forward since my discharged from the Marine Corps.

If my discharge were upgraded to an Honorable one, it would open many doors for me.  Door where I could use the many skills I acquired during my time as a Marine.  This action would not only benefit me, but would help me provide for the welfare of my children.

Thank you for your time.

Sincerely,

Documentation

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

Applicant's DD Form 214 (Member 1 and 4)
Letter/character reference from Applicant's mother dated May 1, 2002
Letter/character reference from a personal friend dated May 14, 2002
Character reference, undated
Job/character reference dated May 2, 2002
Job/character reference dated May 2, 2002
Job/character reference dated May 7, 2002
Character reference dated February 8, 2000
Character reference dated February 8, 2000
Character reference dated January 31, 2000
Character reference dated February 3, 2000
USMC fitness report dated 19981101 - 19990331
USMC fitness report dated 19990512 - 19990629

PART II - SUMMARY OF SERVICE

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

	Inactive: USMCR(J)		940329 - 940530	COG
	Active:   USMC		940531 - 971013	HON

Period of Service Under Review:

Date of Enlistment:  971014		Date of Discharge:  990902

Length of Service (years, months, days):

	Active:    01  10  19
	Inactive:  None

Age at Entry:  23			Years Contracted:  3

Education Level:  13			AFQT:  45

Highest Rank:  Sgt

Final Enlisted Performance Evaluation Averages: All enlisted performance reports were available to the Board for review.

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM, NDSM, SSDR, MUC, MM, Letter of Appreciation (3), Certificate of Appreciation (2), 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, authority:  MARCORSEPMAN Par. 6210.3.

Chronological Listing of Significant Service Events:

981222:	Counseled for deficiencies in performance and conduct.  [Assault spouse by using his hands and applying physical force to the side of her face on 0530, 981123.  Applicant displayed a belligerent attitude towards his spouse and was in the wrong when he did not immediately inform anyone in his chain of command of the whole situation.  His conduct is considered a threat to the good order and discipline of this command.  His behavior is unacceptable, and it will not be tolerated.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990511:	NJP for violation of UCMJ, Article 128:
Specification: Assaulted his wife by grabbing her arms after she drove their vehicle into a chain fence.
Violation of UCMJ, Article 92:
Specification: Disobeyed a lawful order by 1stSgt which was to refrain from using any physical force on his spouse that could be charged with domestic violence.
Awarded forfeiture of $200.00 per month for 1 month, restriction for 14 days.  Forfeiture and restriction suspended for 6 months.  Not appealed.

990723:	NJP for violation of UCMJ, Article 128:
Specification: Assault his wife on 990707.
Awarded forfeiture of $353.00 per month for 1 month, restriction and extra duties for 14 days.  Forfeiture, restriction and extra duty suspended for 6 months.  Not appealed.

990803:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

990803:	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 Applicant's failure to obey rules and regulations.  His intolerable actions over the past seven months have resulted in two nonjudicial punishments.  Through his actions, Applicant has demonstrated that he no longer possesses the potential, nor the desire, for continued honorable service in the Marine Corps.  

990804:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

990811:	SJA review determined the case sufficient in law and fact.

990813:	GCMCA [Commanding General, Marine Corps Base, Camp Pendleton, CA] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 990902 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 and equitable (D and E).

Issue 1.  A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a Marine.  Despite the positive aspects of the Applicant’s record, his service was marred by award of nonjudicial punishment (NJP) on two occasions and an adverse counseling entry on another occasion.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service.  The Applicant was provided ample warning of the consequences of continuing to assault his wife.  The Applicant could have handled his family problems in a manner that did not involve assault.  The Applicant either could or would not control himself.  Despite the alleged shortcomings of his spouse at the time, the record is devoid of evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  An upgrade would be inappropriate.  Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity 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, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that should have been provided to receive consideration for relief, based on post-service conduct.  The Applicant’s evidence of post-service conduct was found not to mitigate the offenses for which he was discharged.  Relief not warranted.

The Applicant 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.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 31 Jan 97 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 128, assault.

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 “afls14.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