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

 ex-Pvt, USMC
Docket No. MD05-00177

Applicant’s Request

The application for discharge review was received on 20041103.  The Applicant requests the characterization of service received at the time of discharge be changed to Honorable.  The Applicant requests a personal appearance hearing before the Board in the Washington, D.C. Metropolitan area.  The Applicant did not list any representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representation from the American Legion.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 20050919.  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 – Pattern of misconduct (administrative discharge board required but waiver, authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “Dear Naval Review Board:

My name is D_ M.  C_, Jr. The reason I’m writing is to ask for a upgrade on the other than Honorable discharge and the upgrade of the RE-4 Re-enlistment code I received from the United States Marine Corps in 1992.  With a RE-4 re-enlistment code which at this time leaves me unable to re-enlist in the Reserves.

I would like to give a little information on myself and the past 12 years.  I signed up for the marine corps on my 18th Birthday because my entire childhood I wanted to be a marine.  I remember writing the Marines when I was ten years old and going to the recruiters office from sixth grade till I enlisted.  I was probably the youngest person in the recruit pool program ever.

Then I graduated from Maple Hts. High School in 1991 and I left for boot camp in September and Graduated in December of the same year.  Prior to graduating I knew I would get recruiter assistance because of my strong involvement with the recruiting station.  Well then I left for Marine Combat Training that January.  I was no different from any other young man who just had completed boot camp.  I started training and about 1 or 2 weeks into training I developed tendonitis in my right foot and was sent to an admin company until I was 100% well.

This is where my problems started.  I was placed in a squad bay with about 20 to 30 other young marines.  The admin company was very hard to adjust to and there wasn’t a lot of discipline there, the moral was very low and it made you feel almost worthless.  Then I became involved with the wrong crowd.  These were marines who just wanted to go home and tried anything they could to do that, I became one of these marines, where all I wanted was to go home and be done with it.

These Marines and I got are selves into all kinds of different troubles from UA to disrespect of commanding officers.  The offenses were no more than young men being unruly.  However quite serious matters to the military.  I was NJP a few times and put on restriction and fined a couple of times.  Then I received a summary court martial with time served and a fine.  I was then released from the Marine Corps in October of 1992 with a other than Honorable discharge all the young marines I ran with were discharged with Bad conduct discharges

To summarize how I felt things happened was that I was in the wrong place at the wrong time and lost my composer as a Man and a Marine.  I truly apologize for my actions.  As I look back on my life the only disappointment I have is the fact that I never fulfilled my commitment that I swore to on my 18th birthday.  I know these were decisions I had made and have to live with but I’m asking for one more chance to fulfill that commitment and make my Country, family and piers proud.  To serve the Greatest Country and Military in the World.  The past 12 years I have been quite busy with continuing education and different trials and tribulations.  Since March of 2000 I have been employed with a construction company here in Cleveland Building subdivisions of single family homes.  I started off in this company as a labor and worked my way up to a punch out guy and then to Assistant superintendent and the past year and a half I have been Project Manager of multiple Jobs sites.  The position I’m currently in I’m in charge of the entire building process from submitting permits to final occupancy.  I’m in charge of all trades from excavation to Final cleaning.  I’m in charge of 30 to 50 guys per house I build.  In this field most guys come from different trades and don’t get a position like this till there well into their late 30’s and early 40’s after being in the trades for a long time.  So I feel I have really accomplished this from my hard work and dedication in the construction field.

My wife and I have one 4 year old son and a newborn we had in February of 2004.  I feel that the military would not only be good for me but also my family.  It will help me with discipline and help me to raise my family.  I mentioned earlier that I was continuing my education.  This past year I have earned a business management diploma from Stratford Career Institute I also have completed a Home Inspection diploma through Professional Career Development Institute.  I’m currently working on Carpentry Level 3 through ABC apprentice that I’ll be completed with In May of 2005.  I also attend different seminars throughout the year on construction related issues.

I will continue to educate myself throughout my career.  I will be submitting my transcripts and other items I feel may help my cause.  Upon request I can have letters of recommendations forwarded to you.  Thanks you for your time in this matter and God Bless.

Sincerely yours,
D_ M.  C_, Jr.
(address deleted)
(telephone number deleted)
(e-mail address deleted)”

Issues submitted by Applicant’s representative (American Legion) at the time of the hearing:

1.  (Equity Issue) This former member opines that youth and immaturity sufficiently extenuated his misconduct of record to warrant the Board’s relief.

2.  (Equity Issue) This former member further requests that the Board consider provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.

Documentation

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

Applicant’s resumé
Job/character reference, dated September 30, 2004
Job/character reference, dated September 21, 2004
Applicant’s record of marriage on October 10, 2003, dated January 14, 2004
Applicant’s verification of enrollment in Associated Builders and Construction 	Apprenticeship Training Program, dated March 30, 2004
Official transcript, dated August 16, 2004
Certificate of completion of Carpentry Level One, dated May 3, 2004
Certificate of completion of Core Curricula, dated May 3, 2004
Letter from Stratford Career Institute, dated February 12, 2004
Official Transcript of grades from Stratford Career Institute, dated January 23, 2004 (2 	pages)
Diploma in Business Management, dated January 23, 2004
Letter from Professional Career Development Institute, dated February 11, 2003
Diploma, dated March 5, 2003
Professional Career Development Institute Official Transcript, dated August 18, 2003
Cuyahoga Community College Certificate for participation and attendance in Private 	Security Training, from January 19 through March 22, 1993
Ohio Peace Officer Training Council, Certificate of completion, dated March 22, 1993
Applicant’s 2003 Form W-2 Wage and Tax Statement
Applicant’s 2002 Form W-2 Wage and Tax Statement
Cuyahoga County Court of Common Pleas, Indictment paper on felonious assault, dated, 	December 29, 1998
Cuyahoga County Court of Common Pleas, Indictment paper on felonious assault, dated 	March 11, 1999
Request for criminal record, dated October 21, 2004
Applicant’s DD Form 214
Twenty-six pages from Applicant’s service record
Letter of Reference from T. R_ B_, dated August 10, 2005
Letter of Recommendation from Mayor M_ B. A_, dated July 22, 2005
Letter of Recommendation from R_ J. A_, dated November 15, 2004
Letter of Reference from M_ S_, dated September 21, 2004
Letter of Reference from L_ I_, dated September 30, 2004
Letter of Recommendation from Dr. E_ S_, dated 12 February 2004
Letter of verification of completion of Professional Home Inspection Course from Dr. 
	M_ M_, dated February 11, 2003
Letter of Character Reference from A_ C_, RSW, dated November 16, 2004
Closing Statement from Applicant, dated September 19, 2005

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		910326 - 910923	COG

Period of Service Under Review:

Date of Enlistment:  910924		Date of Discharge:  921002

Length of Service (years, months, days):

	Active:    01  00  09
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  38

Highest Rank:  PFC			MOS:  0300

Final Enlisted Performance Evaluation Averages (number of marks):*

Proficiency:  3.1 (4)			Conduct:  3.3 (4)

Military Decorations:  None

Unit/Campaign/Service Awards:  RMB, NDSM

Days of Unauthorized Absence:  2

*One set of Pro/Con marks extracted from Commanding Officer’s recommendation dated 920910.

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:

920217:	Applicant to unauthorized absence on 1801, 920217.

920220:	Applicant from unauthorized absence 1200, 920220 (2 days/surrendered).

920313:	NJP for violation of UCMJ, Article 92:
Specification: Derelict in performance of duties by not walking his post on 2040, 920310.
Violation of UCMJ, Article 91:
Specification: Disrespectful to SSgt C_ by mannerism and deportment on 2040, 920310.
Violation of UCMJ, Article 86 (2 specs):
Specification 1: Unauthorized absence 0700-0730, 920311.
Specification 2: Unauthorized absence 1801, 920217 to 1200, 920220.
Awarded forfeiture of $392.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  Extra duty suspended for 6 months.  Not appealed.

920520:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 134 (2 specs):
	Specification 1: Break restriction on 920401.
	Specification 2: Break restriction on 920412.
	Charge II: violation of the UCMJ, Article 86 (2 specs):
	Specification 1: Fail to go at the time prescribe to appointed place of duty on 920318.
	Specification 2: Fail to go at the time prescribe to appointed place of duty on 920319.
	Charge III: violation of the UCMJ, Article 91:
	Specification: Disrespectful in deportment toward SSgt M_ on 920319 by laughing while being counseled.
	Finding: to Charge I, II, and III and the specifications thereunder, guilty.
	Sentence: Forfeiture of $523.00, confinement for 1 month.
	CA action 920615:  Sentence approved and ordered executed.

920701:	Counseled for deficiencies in performance and conduct.  [Lack of reasonable effort, failure to accept responsibility, lack of accountability, lack of attention to detail and overall poor performance.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920908:	NJP for violation of UCMJ, Article 89
Specification: Disrespectful to Lt M_ by mannerism and deportment on 0730, 920827.
Violation of UCMJ, Article 91:
Specification: Disrespectful to HN H_ by mannerism and deportment on 0730, 920827.
Awarded forfeiture of $392.00 per month for 2 months, restriction and extra duties for 45 days.  Not appealed.

920909:	Vacate suspended extra duty awarded at CO’s NJP dated 920313.

920909:	Counseled for deficiencies in performance and conduct.  [Lack of reasonable effort, failure to accept responsibility, lack of accountability, lack of attention to detail and overall poor performance.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920910:	Applicant notified of intended recommendation for discharge by reason of misconduct due to a pattern of misconduct as evidenced by one court martial and two nonjudicial punishments.  The least favorable characterization of service which Applicant may receive is an under other than honorable characterization.

920910:	Applicant advised of 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.

920910:	Commanding Officer, Admin Company, recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  The factual basis for this recommendation is the Applicant’s one court martial and two nonjudicial punishments.  

920916:	Commanding Officer, School of Infantry, concurred with the Company Commander’s recommendation to discharge Applicant with an under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  

920926:	GCMCA, Commanding General, Marine Corps Base, Camp Lejeune, NC, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

010116:	NDRB documentary record review Docket Number MD05-00885 conducted.  Determination: discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19921002 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).

The Applicant states that his misconduct was due to his youth and immaturity and he summarizes the situation as “I was in the wrong place at the wrong time and lost my composure as a man and a Marine”.  While he may feel that his fellow Marines and the circumstances of his assignment to the School of Infantry, Admin Company, were the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  When the service of a member of the U.S. Marine Corps has been honest and faithful, it is appropriate to characterize that service as honorable.  An under other than honorable conditions discharge 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.  The Applicant’s service was marred by 2 retention warnings and 2 nonjudicial punishment proceedings for violations of Articles 86, 91, 92, and 134 of the UCMJ.  In addition, the Applicant was found guilty by a summary court-martial of violation of Articles 86, 91, and 134 of the UCMJ.  Violations of Articles 89, 91, and 92 are considered serious offenses.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief denied.

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  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, is considered.  While the Board applauds the Applicants post service in terms of supporting his family, steady employment, and continuing education, the Board noted the Applicant’s on-going involvement with civil authorities.   The Applicant was arrested for and plead guilty to a charge of felonious assault in 1998-1999 and was also arrested in 1999.   The Applicant stated that he was in the process of having the conviction for felonious assault expunged from his record in order to complete the requirements for the adoption of his stepson. The Board determined that the Applicants overall post service conduct did not mitigate his misconduct while on active duty which resulted in the characterization of his discharge.  Therefore, no relief will be granted.

The following if provided for the edification of the Applicant.  The Applicant has exhausted his opportunities for review by the NDRB.  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

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 89 Disrespect toward superior commissioned officer, Article 91 Disrespect toward a superior noncommissioned or petty officer, and Article 92 Failure to obey order, regulation.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		Secretary of the Navy Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023