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

FOR OFFICIAL USE ONLY

 ex-Pvt, USMC
Docket No. MD05-00261

Applicant’s Request

The application for discharge review was received on 20041129.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions) and the Narrative Reason for Separation be changed to “General to have my Code 4 upgraded.”  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050908.  After a thorough review of the available 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 and reason for discharge shall not change.  The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to a pattern of misconduct.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application and from an attached document/letter to the Board:

“Im requesting an upgrade of my discharge to upgrade my Code 4 so I may be able to have a chance to get back in the Marine Corps again.

Dear United States Marine Corps,

This letter that I have typed to you will dig deep into the roots of my foolish mistakes I made when I was in the Marine Corps.  I regret my actions and the stupidity I made to disrespect the Marine Corps.  I do believe every action taken by the Marine Corps was honest and genuine.  I deserved all my consequences with receiving a Other Than Honorable discharge and a reenlistment code 4.  All together my discharge could have been a lot worse.  There’s one thing that disappointed me and hurt me the most, that is the reenlistment code 4.  I have been told I will never have a chance to get back into the Marine Corps ever again.  Which now brings me down to the lowest level of failure.

When I joined the Marine Corps I didn’t care what my asvab score was as long as I passed and was able to become Infantry.  I also could fight for my country.  Those were my plans.  My father was a Marine and I wanted to be like him and make him proud.  He passed away when I was 4 so he didn’t get to see me walk the deck on graduation day from bootcamp.  That all went up in flames and is burning in hell while my father probably has his back towards me looking down in disappointment.

My plan wasn’t to do everything that I did.  I just got caught up in the moment of these stupid mistakes all at once.  Two Marines and I went out with my girlfriend and her two friends on liberty for the weekend and stayed at a motel.  The night before we were due back to the base we were drinking an we made the dumb decision to go back home with the girls.  We figured couple days U A we would come back and pay the consequences and be back to training.  Another marine we knew that was at the hotel came with us.  The fourth Marine who came with us, his whole plan was hoping that going U A they would discharge him from the Marine Corps.  Even during training he was doing things to try to get kicked out, even faking injuries.  Well, while we were U A at my girlfriends house.  The fourth Marine was talking crap on all of us, saying rude things to my girlfriend at the time and to her friends and even pushed my ex.  That’s when the two other Marines and I attacked the fourth Marine.  To the other two Marines and me, he was a shitbag, excuse my language.  Now I guess I was really the shitbag.  There were other little things that happened too.  Together this made the Marine Corps look at me with pure hate and disgust.  We were young and got caught up in the moment of being with girls and having fun, Not a good excuse but the truth.  It led to the most immature mistake I ever made.

Since the time I was discharged until this day when I have written this letter.  I have learned from it all and remembered what the Marine Corps taught me in boot camp and as a self-disciplined man.  To not let mistakes and failure defeat me in the battle against life, I would overcome and conquer all obstacles each day.  When I got back home from my discharge from the United States Marine Corps.  I went and graduated from the Eastern Ohio Law Enforcement Academy and became a certified Police Officer in Ohio.  I have been working as a Correction Officer at the Northern Regional Juvenile Center for 9 months now.  I’m there to protect my staff, my fellow Officers, and other juveniles.  I also help the other juveniles by talking about my mistakes I made and how I learned from them to better my life.  To show them just because they did wrong doesn’t mean they cant change for the right.  The point of this is I didn’t get discharged from the Marine Corps and still be an idiot as a civilian.  I learned and got my act together again.  And it has stayed that way.

I watch the news and these war movies and I get these emotions on how I disrespected myself and friends I had in the corps because I should have been in war.  I would like to get back into the Marine Corps and join my hometown Infantry reserve unit in Moundsville WV.  I want to be able to make up for what I did in the Marine Corps and have a brand new start as a Devil Dog and finish with self respect for my family, myself and to prove to the Marine Corps I could come back to show them my Honor, Courage, and Commitment to the Corps and help fight with the best.  I want to revive my Semper Fi that I was dishonest too.  I know its not going to be easy to get back in, but I’ve had harder obstacles in my life.  Like the Marine Corps boot camp and I made it through that.  But I guess its different now cause its left in the hands of Honorable Marines decisions to change my discharge and code 4 to let me back in.  If so I will prove my duty.  Thank you for taking the time to read this letter.

Sincerely,

E_ M_ C_ (Applicant)
[signed]”

Documentation

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

Applicant’s DD Form 214
Letter from State of Ohio, Office of the Attorney General verifying successful completion of peace officer basic training, dtd July 25, 2003
Certificate of Program Completion, dtd June 30, 2003
Test results from Ohio Peace Officer Training Commission, dtd July 1, 2003
Shotgun proficiency testing record from Ohio Peace Officer Training Commission, dtd June 17, 2003
Handgun proficiency testing record from Ohio Peace Officer Training Commission, dtd June 17, 2003
Driving proficiency testing record from Ohio Peace Officer Training Commission, dtd March 31, 2003
Ohio Peace Officer Training Commission, Subject control proficiency testing record, dtd March 16, 2003
Self Defense certificate, dtd March 16, 2003
First Air certificate, dtd June 13, 2003
Certificate of achievement, undtd

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	20011206 - 20011211	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20011212		Date of Discharge:  20020920

Length of Service (years, months, days):

Active:    00  09  08
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:   7 days
	Confinement:		  24 days

Age at Entry:  20

Years Contracted:  4

Education Level:  10 GED			AFQT:  37

Highest Rank:  PFC				MOS:  9900

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  NA*				Conduct:  NA*

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Rifle Marksman Badge

*Not Available

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:

020421:	Applicant to unauthorized absence at 0501 on 020421.

020428:	Applicant from unauthorized absence at 1500 on 020428 (7 days/surrendered).

020501:	Counseling:  Advised of deficiencies in performance and conduct (Specifically unauthorized absence from Charlie Company, ITBn, SOI, Training Command, Camp Lejeune from 2000, 020420 to 1500, 020428), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  Applicant choose not to make a statement.

020604:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 86:
	Specification: UA fr 020402 until aprnd 020428.
	Charge II: violation of the UMCJ, Article 92:
	Specification: Did, on or about 020420 violate BO 1700.6h, by distributing alcoholic beverages to minors.
	Charge III: violation of the UCMJ, Article 128:
	Specification: Did, on or about 020420 assault PFC C_, S_, by striking him with his hands.
	Finding: to Charges and the specifications thereunder, guilty.
	Sentence: Forfeiture of $737.00, confinement for 29 days, reduced to E-1.
	CA action 020607:  Sentence approved and ordered executed.

020604:	Applicant to confinement.

020628:	Applicant from confinement.

020719:	NJP for violation of UCMJ, Article 92:  In that Private C_ (Applicant), E_ M., U.S. Marine Corps, Delta Company, Infantry Training Battalion, School of Infantry, Training Command, Camp Lejeune, having knowledge of a lawful order issued by GySgt R_, B_ D., a senior staff noncommissioned officer, to wit: “Continue to train,” or words to that effect, an order which it was his duty to obey, did at or about, 1300, 10 Jul 02, fail to obey the same by refusing to train.
	Award:  Forfeiture of $552 per month for 2 months, restriction and extra duty for 45 days.  Not appealed.

020725:	Counseling:  Advised of deficiencies in performance and conduct (Violations of Articles 86, 92, and 128 of the UCMJ resulting in a Summary Court Martial held on 020604 and a violation of Article 92 resulting in an NJP held on 020719) and advised being processed for adverse administrative action: separation due to pattern of misconduct.

020730:	Applicant requested voluntary leave awaiting administrative separation.

020730:	Commanding Officer, Headquarters and Support Battalion, School of Infantry, Training Command, Camp Lejeune, NC forwarded Applicant’s request to the Commanding General, Marine Corps Base, recommending approval.

020814:	Commanding Officer, School of Infantry, Camp Lejeune, NC forwarded Applicant’s request to Commanding General, Marine Corps Base, Camp Lejeune, NC.

020820:	Commander, Marine Corps Base, Camp Lejeune, NC approved Applicant’s request for voluntary leave awaiting administrative separation.

020821:	Commanding Officer, (School of Infantry, Training Command, Camp Lejeune, NC), forwarded Commanding Officer’s (Headquarters and Support Battalion) recommendation for Applicant’s discharge under other than honorable conditions by reason of pattern of misconduct with concurrence.  Commanding Officer’s (SOI) comments:  “Private C_ (Applicant) has displayed a pattern of misconduct that is not in keeping with the good order and discipline of the Marine Corps.  Private C_ (Applicant) had a Summary Court Martial for violation of Article 86, Article 92 and Article 128.  Most recently he had a Battalion level nonjudicial punishment for violation of Article 92.  During my interview, Private C_ (Applicant) stated he had made a mistake by enlisting into the Marine Corps and just wants to get out so he can start over again.  Private C_ (Applicant)’s recalcitrant and negligent attitude exhibits no further value to the Marine Corps.”

020912:	SJA review determined the case sufficient in law and fact.

020916:	GCMCA, Commanding General, Marine Corps Base, Camp Lejeune, NC, directed the Applicant's discharge with under other than honorable conditions by reason of a pattern of misconduct.

Service Record Book contains a partial Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020920 by reason of misconduct due to a pattern of misconduct (A and B) with a service characterization of under other than honorable conditions.  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).  In the absence of a complete discharge package, the Board presumed regularity in the conduct of governmental affairs (E).

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 a summary court-martial conviction for violations of Articles 86, 92 and 128 of the UCMJ.  The Applicant was subsequently subject to nonjudicial punishment proceedings for a violation of Article 92 of the UCMJ for his failure to obey an order.  Violations of Articles 92 and 128 of the UCMJ are considered serious offenses.  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 Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Additionally, the summary of service clearly documents that misconduct due to pattern of misconduct was the reason the Applicant was discharged.  No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged.  Relief is not warranted.

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.  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.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that his discharge was appropriate and that his evidence of post-service conduct was found not to mitigate the conduct for which he was discharged.  Relief denied.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code.  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.  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 P1900.16F), effective 01 Sep 2001 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 92, failure to obey an order/regulation or Article 128, assault.

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

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

E.  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.

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