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

 ex-PVT, USMC
Docket No. MD02-01182

Applicant’s Request

The application for discharge review, received 020815, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a personal appearance hearing discharge review before the Board in the Washington National Capital Region or a personal appearance hearing discharge review before a Traveling Panel.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgment letter to the Applicant, he was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing, and that the Naval Discharge Review Board (NDRB) does not travel, all hearings are held in the Washington National Capital Region. 

Decision

A documentary discharge review was conducted in Washington, D.C. on 030522.  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.  My discharge was the result of a vendetta against me, therefore rendering it (the discharge) improper.  Issue 1. Use brief. Page 1; page 4 entire 2nd paragraph. (please note that this is only a partial accounting and does not include "unofficial" punishment.)

I am a Marine of the United States Marine Corps.  This statement is my opinion in regards to punishment given for infraction of the U.C.M.J. and the logic that determined it.  My view is based off of what I have personally witness or what I know to be true.  Pvt E_ V_ for late paying a 42.60 billeting bill, going U.A. for a period of 28 days, Breaking restriction, he received 4 N.J.P. (Non judical punishment in which the lost about 3,000 dollars, about 135 days of restriction), 36 days in the brig (most of that time was spent in solitary confinement) and was given a suspended sentence of 3 months and 600 dollars a month forfeiture at a special court martial which will be a stain on a record that had no priors.  I truly can't see the logic behind the punishment for the very offenses committed by this marine, for others have committed these and even greater but, are dealt with in a much different manor.
Lcpl C_ due to serious problems with family was forced to leave and do what he could to help his family.  The period of time he was gone was sufficient for deserter status.  He received company level N.J.P. (14 days restriction and it is not known whether or not any moneys were taken if so it did not exceed 300.00).  Lcpl M_ due to being deployed and having various other responsibility allowed a note he has a car to lapse to the point of repossession, was called into company office.  No official action taken.  Cpl G_ is charged with assault and is given a summary court martial and 30 days in the brig.  Lcpl W_ unofficially charged with assault and is put in A.A.  Lcpl S_ and Lcpl N_ charged with assault and battery and was placed on the "buddy" system and told to write essay.  Lcpl H_ makes a statement with racial bigotry intent and is not charged.  Pvt G_ made racially controversial statement and is given Battalion level N.J.P. (lost of rank, 900.00 forfeit, 45 days restrictions, 45 days extra duty.).  P.F.C. D_ makes a racially controversial statement and receives a page 11 entry.  I have been late for formation on occasion and not once have I ever been charged.  Let it be understood that these are just some examples and by no means a complete accounting.

I was held in effigy for all to see.  That is the reason why I have all the witnesses that I have.  A concentrated effort was made by command to demoralize and dehumanize me.  Just incase I was or for that matter you are wondering whether or not this is true, I was actually told so.  My enlistment was turned into an occasional hell.  It was so painfully obvious that M_ S_, who if command were in any way even handed would have been in my same condition; who instead of feeling fortunate felt sympathy to the point signing a witness statement that brings unfairness of command to light.  You have his permission to obtain his record.

3/7s' actions severely damaged my ability to serve and function in any capacity; military or civilian.  The fact that the commands' abuse were at best arbitrary is also is a reason that makes my discharge improper.  Issue 2, page 1, entire 2nd paragraph.

Lcpl C_ due to serious problems with family was forced to leave and do what he could to help his family.  The period of time he was gone was sufficient for deserter status.  He received company level N.J.P. (14 days restriction and it is not known whether or not any moneys were taken if so it did not exceed 300.00).  Lcpl M_ due to being deployed and having various other responsibility allowed a note he has a car to lapse to the point of repossession, was called into company office.  No official action taken.  Cpl G_ is charged with assault and is given a summary court martial and 30 days in the brig.  Lcpl W_ unofficially charged with assault and is put in A.A.  Lcpl S_ and Lcpl N_ charged with assault and battery and was placed on the "buddy" system and told to write essay.  Lcpl H_ makes a statement with racial bigotry intent and is not charged.  Pvt G_ made racially controversial statement and is given Battalion level N.J.P. (lost of rank, 900.00 forfeit, 45 days restrictions, 45 days extra duty.).  P.F.C. D_ makes a racially controversial statement and receives a page 11 entry.  I have been late for formation on occasion and not once have I ever been charged.  Let it be understood that these are just some examples and by no means a complete accounting.

Since the fact that I was having"irregularities" in regard to pay was of no apparent concern, 3/7 also failed to provide leadership.  Another reason that makes my discharge improper.  Command had full knowledge that I was going for extended periods of time with little or no pay.  Issue 3, page 4, entire 1st paragraph.

My pay issue runs long and deep.  Command was fully aware from the very beginning of the fact that I was either receiving very little or no money.  They were well aware of the fact that I had obligations that included child support.  Yet this was not taken into consideration when they decided to take money from a almost nonexistent pay check and decided to restrict me so I couldn't work part-time to make up for what was lacking.  This, of course only served to set me up for more punitive actions, more money taken.  A vicious, Sadistic cycle. 

My discharge is improper in that I was coerced into plea agreement by all the circumstances that characterized my enlistment (mentioned in for mentioned issues), and incarceration.  Issue 4, page 4, entire 3rd paragraph.

For my plea agreement, I signed a statement that meant that I agree to the terms of the agreement without any coercion.  My money had been taken.  My privacy violated ( I told command not to inform family or friends of my incarceration; the privacy statement apparently wasn't worth the paper it was printed on).  Solitary confinement.  Various verbal threats (command made it quit clear that they could do what ever they want when ever they wanted).  At the very least I was coerced.  Actually my "agreement" was a capitulation.

Documentation

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

Collective Statement (2 pages)
Statement from M_ S_
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		951101 - 951128	COG

Period of Service Under Review:

Date of Enlistment:  951129		Date of Discharge:  970807

Length of Service (years, months, days):

	Active:    01  08  09
	Inactive:  None

Age at Entry:  25			Years Contracted:  4 

Education Level:  08			AFQT:  58

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.8 (5)			Conduct:  3.7 (5)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR

Days of Unauthorized Absence:  65

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:

960702:	NJP for violation of UCMJ, Article 86: (2 Specifications), Specification 1: Unauthorized absence from appointed place of duty, to wit: barracks security watch, 2400, 960618;
Specification 2: Unauthorized absence from appointed place of duty, to wit: field day formation, 1330, 960620.
Awarded forfeiture of $250.00 pay per month for 1 month, restriction and extra duties for 10 days.  Not appealed.

961219:	NJP for violation of UCMJ, Article 134: Did at Luke AFB, AZ, on or about 960723 with intent to defraud, falsely pretend to pay that bill, then knowing that the pretenses were false, and by means thereof did wrongfully obtain from Fighter Country Inn, of a value of $42.60, to wit: Billeting and phone bill.
Awarded forfeiture of $437.00 pay per month for 2 months, restriction and extra duties for 45 days.  Not appealed.

970129:	NJP for violation of UCMJ, Article 86: Did on or about 961223, without authority, absent himself from his unit, to wit: H&S Company, 3d Battalion, 7th Marines, located at MCAGCC, 29 Palms, CA, and did remain so absent until on or about 0730, 970121; violation of UCMJ, Article 134: Having been on restriction to the limits of Bldg 1412, by a person authorized to do so, did, on or about 961223, break said restriction.
Awarded forfeiture of $450.00 pay per month for 2 months, restriction and extra duties for 45 days.  Not appealed. 

970404:	NJP for violation of UCMJ, Article 86: (2 Specifications), Specification 1: Did on or about 0900, 970222, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Battalion Restriction; Specification 2: Did on or about 0530, 970324, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: PT formation in front of Barracks 3536.  Violation of UCMJ, Article 134: Having been restricted to the limits of Bldg 3527, by a person authorized to do so, did at Camp Schwab, Okinawa, Japan, on or about 1400, 970217, break said restriction.
Awarded forfeiture of $450.00 pay per month for 2 months, restriction and extra duties for 45 days.  Not appealed.

970509:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 86 (2 Specifications):
	Specification 1: Unauthorized absence
	Specification 2: Unauthorized absence.
	Charge II:  violation of the UCMJ, Article 134: Broke restriction.  Additional Charge I: violation of the UCMJ, Article 86: Unauthorized absence.  Additional Charge II: violation of the UCMJ, Article 92: Failure to obey lawful order.
	Findings:  to Charge I and specifications 1 and 2 thereunder, guilty.  To Charge II and specification thereunder, guilty.  To additional Charge I and specification thereunder, guilty.  To additional Charge II and specification thereunder, guilty.  
	Sentence:  Confinement for 120 days, forfeiture of $600.00 pay per month for 4 months.
	CA 970603:  Sentence approved and ordered executed except for confinement in excess of 37 days shall be suspended for a period of 12 months from the date of the convening authority's action at which time unless sooner vacated, it shall be remitted without further action.
	
970606:	Counseled for deficiencies in performance and conduct.  [4 non-judicial punishments over the past 12 months, recent convictions at a court-martial of the offenses of 3 specifications of Article 86, 1 specification of Article 134, 1 specification of Article 92, and overall poor performance and attitude.  At the court-martial Applicant was given the punishment of confinement for 120 days and forfeiture of $600 for 4 months, suspended for a period of 12 months.  At this time he is being processed for administrative separation with an other than honorable characterization of service.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970623:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

970623:	Applicant advised of his rights and having elected to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

970710:	Waiver of rights.

970711:	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 the respondent's pattern of misconduct.  During his current enlistment in the Marine Corps, he has received one Special Court-Martial, four non-judicial punishments, and a counseling entry page on page eleven of his service record.  Despite efforts to encourage him toward honorable, productive service, he has responded with further acts of misconduct.  By his actions, he has demonstrated that he has absolutely no potential for further military service. 

970723:	SJA review determined the case sufficient in law and fact.

970726:	GCMCA [Commanding General] 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 980807 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.  The statements and signatures provided by the Applicant did not convince the Board that he was treated improperly or inequitably.  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.  The Applicant’s service was marred by award of nonjudicial punishment (NJP) on four occasions and a special court-martial on another occasion. While he may feel that the actions of his chain of command and pay problems were factors that contributed to his misconduct, the record clearly reflects his disregard for the requirements of military discipline and demonstrated that he was unfit for further service.  Despite the Applicant’s claim that he was not treated fairly, 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.  The Board’s regulations limit its review to a determination on the propriety and equity of the discharge.  In the Applicant’s case the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge was proper and equitable.  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 is evident 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.  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, Article86, unauthorized absence; Article 92, failure to obey a lawful general order; Article 134, break restriction, false pretenses.

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