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

  ex-LCpl, USMC
Docket No. MD03-01087

Applicant’s Request

The application for discharge review was received on 20030605.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record review.  The Applicant listed the Veteran of Foreign Wars representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20020415.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  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, as stated

Applicant’s issues, as stated on the application:

1.  “I was discharged other than honorably on April 14, 2000.  I was having trouble with my marriage while my family and I were living on base.  I sought help through my command and my captain asking for some type of marriage counseling.  After several months of trying to received counseling and not able to get it, I asked if they would allow my family and I to be moved to another location out of state.  I believed it to be necessary to move off base to another location because we were unable to work on our problems while we were living in this specific location.  My captain was unwilling to help me and was even threatening at times.  The Marines is important to me, but my marriage and children were important to me as well.  My Captain specifically said that he would not authorize a change of command for me, and I was left with no choice.  I was trying to work things out while on base but it was not working and I was failing to do my job to my fullest capacity.  I was discharged for reasons that I feel were beyond my control after trying to seek help.  I feel that I am more than ready and able to serve my country and I am requesting a change of re-entry code.  On my certificate of release it shows that I received a good conduct medal but the only thing that needs to be changed is under the separation code is shows HKQ1 and instead of discharged other than honorably I would like it to say honorably discharged.  I would like more than anything to serve in the Military again and I am willing to do whatever it takes to change my certificate of release.  If there is anything that you could do to help me in this process I would greatly appreciate it.  Thank you for your time and consideration.”

Issues submitted by Applicant’s counsel/representative (VFW):

2.  “We concur with the applicant contentions that his discharge be upgraded, the contention is, that he was having family problems that he sought counseling for but was not able to get counseling through his command.  This could have led to his disciplinary problems.  We ask the board to consider his letter of appreciation, his Certificate of Achievement and his Citation for exceptional service during Operation Southern Watch in your decision.”

Documentation

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

Applicant’s DD Form 214
VFW ltr dtd 16 Sep 2003
Ltr of Appreciation dtd 17 Sep 1997
Citation from Commander Fifth Fleet
Certificate of Achievement
Certificate of Honorable Discharge dtd 3 Nov 1997

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		930927 - 971103	HON
	Inactive: USMCR(J)		930806 - 930926	COG

Period of Service Under Review:

Date of Enlistment:  971104		Date of Discharge:  000414

Length of Service (years, months, days):

	Active:    02  05  10
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  35

Highest Rank:  Cpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (9)			Conduct:  4.4 (9)

Military Decorations:  Good Conduct Medal

Unit/Campaign/Service Awards:  National Defense Service Medal, Southwest Service Medal, Sea Service Deployment Ribbon (w/ 1 star), Armed Forces Expeditionary Medal.

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:

971104:	Reenlisted for 4 years at 2d Bn, 1st Mar, 1MarDiv, Camp Pen, CA.

980826:	Counseled regarding not being recommended for promotion to Sergeant due to lack of military appearance and failure to meet physical fitness standards. 
980923:	Counseled regarding not being recommended for promotion to Corporal because of a lack of discipline.

990105:	Counseled regarding not being recommended for promotion to Sergeant for lack of leadership.

990202:	Counseled regarding not being recommended for promotion to Sergeant due to weight control.

990831:	Counseled regarding not being recommended for promotion to Sergeant due to pending legal. 

990929:	Counseled regarding not being recommended for promotion to Sergeant due to financial irresponsibility.

991027:	Counseled for deficiencies in performance and conduct.  Specifically, on 29 September 99 a Low Level CRC Board found Substantiated/Unresolved Low Level Conflict due to a Domestic Disturbance altercation on 2 September 99.  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

991110:	Counseled for deficiencies in performance and conduct.  On 17 October 99 the Applicant was involved in a Domestic Disturbance altercation with his wife.

991203:	Military Protective Order issued to Applicant by Commanding Officer.

000207:	Counseled for deficiencies in performance and conduct.  Specifically, being dismissed from the Men’s Educational Program on 23 November 99.

000207:	NJP for violation of UCMJ, Article 92:  On or about 11 Dec 99, violated Military Protective Order.  Violation of UCMJ, Article 92: On or about 30 Dec 99, violated Military Protective Order.  Violation of UCMJ, Article 92: On or about 25 Jan 00 violated Military Protective Order.  Violation of UCMJ, Article 92:  On or about 30 Dec 99 was in violation by not following the recipe for steamed rice.    Violation of UCMJ, Article 92:  On or about 29 Jan 00 violated Military Protective Order.  Violation of UCMJ Article 91:  On or about 30 Dec 99 was disrespectful to a Noncommissioned officer.  Violation of UCMJ Article 92:  On or about 29 Jan 00 intentionally intended to deceive a Military Police Officer.
	Award:  red to E-3, forf of $667.00 pay per mo for 2 mos, restriction and extra duty for 45 days.  No indication of appeal in the record.

000208:	Counseled for deficiencies in performance and conduct.  Specifically, on 3 Dec 99 Applicant was the subject of a PMO Blotter report involving a domestic assault with Spouse.  Per Case Review Committee Hearing on 15 December 99 categorized the Applicant as a Level 4 offender. 

 000210:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by involvement in Domestic Disturbances, dismissal from the Men’s Educational Program, and violations of the UCMJ Articles 91, 92 and 107.

000216:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

000315:	NJP for violation of UCMJ, Article 87 (1 spec):
Specification 1:  SNM broke restriction by not being in his barracks room.
Awarded Red to E-2, Forf of $677.00 pay per mo for 2 mos, restriction and extra duties for 45 days.  Red and forf susp for 6 mo.  Not appealed.

000328:	Applicant waives right to a hearing before an administrative separation board.

000403:	NJP imposed and suspended on 15 Mar 00 for a period of 2 months vacated and executed.

000407:	SJA review determined the case sufficient in law and fact.

000407:	GCMCA CG 1st FSSG 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 2000414 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).

Issues 1-2.   The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and/or the reason for discharge if such change is warranted.  There is no evidence of impropriety or inequity in the Applicant’s discharge.  The Applicant’s misconduct is clearly documented.  

The Applicant contends his disciplinary problems were the result of stress caused by his marriage.  The NDRB recognizes that serving in the Marine Corps is challenging.  Our country is fortunate to have men and women willing to ensure the hardships and sacrifices required in order to serve their country.  It must be noted that most members of the Marine Corps serve honorably and therefore earn their honorable discharges.  In fairness to those members of the Marine Corps, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due.  The NDRB found that the Applicant's service was equitably characterized.  Relief denied.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  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 January 1997 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 [ e.g., Article 86, unauthorized absence for more than 30 days].

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