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

   ex-Pvt, USMC
Docket No. MD02-01210

Applicant’s Request

The application for discharge review, received 020819, 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.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement 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. 

Decision

A documentary discharge review was conducted in Washington, D.C. on 030722.  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 – Pattern of misconduct (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  The discharge that I received was out of vindictiveness.  I was railroaded out of the service after an onslaught of harassment by the Sgt Maj.

2.  The discharge is also unfair in respect to the fact that after I had requested a hearing to contest the discharge I was threatened.

Ladies and Gentlemen of the Board:

I am attempting to correspond with you again.  I hope that this is not a bother to you.  I'm sure that you all have very busy schedules.  Last year sometime in October of 2001, 1 had sent a request with all necessary papers for either a change in the discharge that I had received or a hearing allowing me before the board to answer any questions that you may have in order to attempt to get my discharged changed.

It wasn't up until last year that I had an opportunity to do something about trying to get this done.  I am resubmitting all paperwork that I have along with this letter.  Please bear in mind that I am not trying to be overbearing.  This is just in case something was lost in the mail last year at this time.  Also this is very important.

An incident took place back in August of 1991 on Kaneohe Bay, Hawaii.  We had been back from Saudi Arabia for only a few months (I was one of the longest units there).  Another Marine and myself had gone to the E-club one night.  We ran into a girl by the name of C_ G_. Cathy was a very friend of mine.  Also C_ had been dating my best friend LCPL.  J_ A_.  As we were being deployed to Saudi Arabia, C_ let us store a lot of out personal effects at her house on base.  Her father held the rank of a Master Gunnery Sergeant (I believe) at the time.  That night at the E-club she had been there for some time drinking.  She had come up to me and the other Marine that I was with and we had started talking.  She then began to confide into me that she had strong feelings for me.  I told her that she was drunk and that she would forget about it by morning.  Also that she probably just missed John because he was home on leave.  As I turned to walk away, she grabbed me and started calling me a bunch of names.  I told her to relax and that I would not say anything to J_.  This incident then followed outside into the parking lot.  She kept grabbing at me.  The Marine I was with and myself were attempting to go directly back to the barracks.  After about 30 min., a M.P. came to the barracks asking about an incident at the E-club.  He then told me that I was being accused of assault against a female civilian.

I had cooperated with everyone who inquired about what had taken place.  I found out very soon afterwards that I was then going up for office hours.  I didn't know how, or why the Family Advocacy Subcommittee became involved.  I had been interviewed by them as well as command.  The lady from the Family Advocacy had told me personally that Cathy's story made no sense and that it was conflicting, also that there were no marks on her.  I was very much into weightlifting at that time and was pretty big and strong.  She had submitted a form to command that the incident did not happen.  She also believed the story was made up for fear that I would tell John (her boyfriend) what she had said.  Unfortunately for me, Msgt. G_ was a good friend of my squadron's Sgt. Maj. Sgt.  Maj. H_.  I was found guilty of the incident.  I pled with them that I did nothing and that even the Family Advocate Subcommittee (who were very civilian friendly) found the story to be false.  Actually, the C.O. found me guilty of a lesser crime.  Needless to say, the Sgt Maj. was not happy.

The reason I went so far into detail on this particular incident is because this was the beginning of the end.  After this incident it was a non-stop bombardment from the Sgt. Maj. I was under a constant barrage of scrutiny from the Sgt. Maj.  I had made requests to be transferred at least to a infantry unit, anywhere, just to get away from there.  My SNCOIC did not want to let me go.  I did receive good pro's and con's for the most part.  I was a pretty good Marine.  I went into work hours before hand to get things done for my watch so we could have it easier.  There is a lot I did that I won't bore you with now.

For my part in Desert Shield and Storm I received a Meritorious Mast.  I am sure that you know that they just don't hand those out.

Before my separation I was told that I could have an early out.  Things had finally gotten to me and then I did become a different person.  I will not go into details now, however there are also other mitigating circumstances that contributed to why I acted out a little.  But in no way should I have received a OTH for it.  Especially since there was another Marine who constantly got into trouble, was booted out early and still received a Honorable Discharge.  Against my better judgement and after countless attempts to be transferred, I accepted.  As I was doing the check outs I then learned that I was going to receive a OTH.  I though I was getting the same as the other Marine who had been in more trouble with squadron.  After I asked about it, I was told that it would be changed after some time (6-12 months to be exact).  I then informed squadron that I wanted a hearing on the matte.  I was pretty much told that if I did not take it now, that not only would I get a OTH or worse, but that during the entire time of my hearing I would regret making that decision.

There are a lot of things that I can go into, however, I know you probably have a very busy schedule.  I would very much like a chance to come before the board and refute the allegations that were brought before me.  Something that I was not allowed 10 years ago.  It is very important to me that you do not misconstrue what I am saying here.  I do not want to mislead anyone into thinking that I was an angel.  I did stupid things.  I was young.  I have been on my own since the age of I 1. But I always did my best and went above and beyond of what was expected.

I have no hatred feelings or discontent to the Marine Corps.  I still speak highly of them today.  You will find enclosed is a letter from my boss, who recruited me out of high school that will state that I still pretty much live my life in a disciplined manner.  I am sorry that it is a copy.  I sent the original with my first letter to you.  There are also what little paperwork that I have left over from the original.

I want to thank you for allowing me this time to correspond with you.  I hope that if any questions arise that I will be given a chance to appear before the board and personally answer any and all questions that you might have.  I work full time (55-60 hours a week) and go to night school full time (where I have made the honors program and the deans list).  On the weekends I take my kids.  I would put everything on hold to appear before you.  I am hoping for a second chance at this.  The interesting part is that part of getting a second chance is being able to right a wrong.  I am hoping to get that chance.

Again, thank you for your time.  Please contact me if there are any questions.

Sincerely,

Documentation

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

Copy of DD Form 214
Copy of Family Advocacy Subcommittee Determination and Recommendation Letter dated October 8, 1991 
Character Reference dated October 11, 2001
Copy of Meritorious Mast Certificate date March 10, 1991
Operation Desert Shield/Storm Certificate of Appreciation dated from September 1990 to April 1991
Copy of Transcript from South Suburban College
Letter from Dr S_ V_, Coordinator, Honors Program, Faculty Advisor, Phi Theta Kappa 

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		880330 - 890122	COG

Period of Service Under Review:

Date of Enlistment:  890123		Date of Discharge:  920911

Length of Service (years, months, days):

	Active:    03  07  20
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  50

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (8)			Conduct:  4.3 (8)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Sharpshooter Badge, NDSM

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:

910809:	Counseled for deficiencies in performance and conduct.  [Alcohol related incident, specifically, underage drinking.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

910830:	NJP for violation of UCMJ, Article 128: Did on or about 0200, 910804 in front of the Enlisted Club at MCAS Kaneohe Bay, wrongfully assault Ms. K_ G_ by striking her in the right side of her face with his hand.
Awarded forfeiture of $200.00 pay per month for 1 month, extra duties for 45 days.  Not appealed.

920205:	Applicant evaluated by JDAC, with discharge from the Marine Corps recommended.  Directed to participate in the following care plan:  Weekly check in with the unit SACO, monitored attendance at 3 AA meetings weekly, and complete abstinence from alcohol and all establishments whose primary purpose is the sale of alcohol.
      
920221:	Counseled for deficiencies in performance and conduct. [Being assigned to weight control IAW MCO 6100.10.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920228:	Counseled for deficiencies in performance and conduct. [Being suspected of committing the following infraction while out of town; assaulting and then fleeing away from a Honolulu Police Officer.  Alleged incident resulted in a civilian court summons at Honolulu District Court.]   Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920325:	Counseled for deficiencies in performance and conduct. [On 920205 evaluated at JDAC due to Command referral.  This evaluation resulted in a recommendation for discharge due to misconduct and lack of potential for continued military service.  Retention would only bring additional discredit upon himself and the Marine Corps.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920325:	Counseled for deficiencies in performance and conduct. [Failure to make  car payment for two consecutive months.]   Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920403:	Civil Conviction:  [Honolulu District Court] for 3rd degree assault on a police officer.
Sentence:  Fined $200.00.
	
920429:	Evaluation Report for VA rights indicates alcohol abuse.
 
920519:	Counseled for deficiencies in performance and conduct. [Wrongfully dating another Marine’s wife.]   Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920519:	NJP for violation of UCMJ, Article 123a: Did on or about 920403 at MCAS Kaneohe Bay, HI ; wrongfully utter three worthless checks to an MWR facility totaling $129.40; violation of UCMJ, Article 123: Did on or about 920409 at MCAS Kaneohe Bay, HI; wrongfully utter one worthless check to an MWR facility totaling $20.19; violation of UCMJ, Article 123a: Did on or about 920410 at MCAS Kaneohe Bay, HI; wrongfully utter two worthless checks to an MWR facility totaling $50.00.
Awarded forfeiture of $400.00 pay per month for 2 months (suspended for 6 months), restriction for 60 days, reduction to E-2 (suspended for 6 months).  Not appealed.

920521:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

920521:	Applicant advised of his rights and having elected to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to include written statements in rebuttal to this proposed separation and to obtain copies of the documents used to support the basis for the separation.

920521:	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 two nonjudicial punishments and several page 11 entries. 

920526:	Counseled for deficiencies in performance and conduct. [Wrongfully uttering six worthless checks to an MWR facility totaling $199.50, thus resulting in NJP on 920519.]   Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920528:	Counseled for deficiencies in performance and conduct. [Specifically for being found guilty of assaulting a Honolulu Policeman at Civilian Court on 920403.  This conviction resulted in a $200.00 fine.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

Undated:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 134 (2 Specifications),
	Specification 1: Wrongfully have sexual intercourse with a married woman not his wife.  Specification 2: Broke restriction on 920712.
	Finding:  to Charge I and specification 1 and 2 thereunder, guilty.
	Sentence:  Forfeiture of ½ of one month‘s pay for 1 month, reduced to E-1, confinement for 25 days.
	CA action 920804:  Sentence approved and ordered executed.

920610:	SJA review determined the case sufficient in law and fact. 

920629:	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 920911 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 sailor.  The Applicant’s service was marred by award of nonjudicial punishment (NJP) on two occasions, one civil conviction, one summary court-martial, 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 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 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.

Issue 2.  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.  While the Applicant claims he was treated unfairly by his chain of command and that he was threatened in order to deny his rights regarding the separation proceedings, no such impropriety 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.  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 offense 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 P1900.16D), 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, Article 123a, worthless checks; Article 128, assault; and Article 134, wrongful sexual intercourse.

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