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

ex-PFC, USMCR
Docket No. MD05-00387

Applicant’s Request

The application for discharge review was received on 20041227.  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 National Capital Region.  The Applicant listed the American Legion as the representative on the DD Form 293.  In the acknowledgement letter, the Applicant 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 20050428.  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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “Please review

-Bn NJP on 030422 (Hazing)
· My written rebuttal was never entered in to my SRB. (no coppies)

-Bn NJP on 030517 (Inappropriate language)
· Why was I punnished and labled as racist but not charged as one.
· Punishment

-Admin Seperation.
· Speedy process (time)
· Any and all documentation reguarding AdmSep.  My final SRB was incomplete
  and had only one document related to sep.  No rebuttal.  No pg 11, only an order
  to separate.
· Pattern of misconduct?  I only made two mistakes my entire career.
· I feel as though I was discharged unfairly”

Additional issues submitted by Applicant’s representative (American Legion):

2.  “Equity Issue:  Based on our review of evidentiary record and on behalf of this former member, we request that the Board also consider provisions of SECNAVINST 5420.174D, Part IV, Paragraph 403 m (7), as it pertains to post-service conduct, in assessing the merits of this application. 

In accordance with Title 32, CFR, section 724.116 and SECNAVINST 5420.174D, Part I, Paragraph 1.20, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue and following statement in supplement to this Applicant’s petition. 

Review of the service record reveals that this former member maintained satisfactory Proficiency/Conduct markings of 4.5/4.2 and earned the NDSM, AFRM, LOA (2), COC, and REB.  He was awarded NJP on 030422 for VUCMJ, Article 92 and NJP on 030517 for VUCMJ, Article 134.  Following due process notifications, he was discharged General (Under Honorable Conditions) due to a pattern of misconduct as authorized by MARCORSEPMAN, Paragraph 6210.3.

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because there were extenuating factors that contributed to his misconduct and because his characterization is too harsh in light of his over all service record.  He has submitted 4 detailed letters from members of his previous chain of command stating their belief that an injustice occurred in this case warranting the Board’s relief. 

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised.  To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by Title 10, USC, Section 1553, and set forth in Title 32, CFR, Part 724 and SECNAVINST 5420.174D.

This case is now respectfully submitted for deliberation and disposition.”

Documentation

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

Applicant’s DD Form 214
Supporting statement from T. G. M_, dated January 15, 2004
Supporting statement from GySgt J_ A_, dated January 17, 2004
Supporting statement from SSgt R_ W. H_, undated
Letter of reference from MGySgt L_ J. H_, dated March 28, 2004
Letter from Applicant, dated April 12, 2004
Written rebuttal regarding administrative separation from Applicant, dated December 4,
    2004

PART II - SUMMARY OF SERVICE

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

	Inactive: None
	Active:   None

Period of Service Under Review:

Date of Enlistment:  991015		Date of Discharge:  030620

Length of Service (years, months, days):

	Active:    01  01  13
	Inactive:  00  09  02

Age at Entry:  17			Years Contracted:  8

Education Level:  11			AFQT:  72

Highest Rank:  Cpl			MOS:  3521

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.5 (8)			Conduct:  4.4 (8)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, AFRM, LoA (2), CoC, REB (2)

Days of Unauthorized Absence:  None

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.3.

Chronological Listing of Significant Service Events:

000717:	Applicant reported for initial tour of active duty for training (IADT).

010406:	Applicant released from IADT, having served 8 months, 20 days of honorable service.

030128:	Applicant’s unit (H&S Co, 4th Maintenance Bn, 4th Force Service Support Group, Charlotte, NC) mobilized and Applicant reported to active duty.

030131:	Applicant assigned to General Support Maintenance Co, 2d Maintenance Bn, 2d Force Service Support Group, Camp Lejeune, NC for duty at Camp Fox, Kuwait.

030422:	NJP for violation of UCMJ, Article 92:
Specification: Failed to obey a lawful order on 030413, issued by Commandant of the Marine Corps, to wit: MCO 1700.28 (hazing).
Awarded forfeiture of $764.00 per month for 2 months, restriction and extra duties for 45 days, reduction to LCpl.  Suspended for 6 months.  Not appealed.

030422:	Counseled for deficiencies in performance and conduct.  [Violation of Article 92 of the UCMJ, specifically failing to abide my order or regulation by hazing a LCpl.  Your conscious decision to exercise such poor judgment brought discredit upon you, all Marine non-commissioned officers and will not be tolerated by this command.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  Applicant elected to make a statement.

030428:	Applicant failed to turn rebuttal statement within the five days after acknowledgement of counseling.

030517:	NJP for violation of UCMJ, Article 134:
Specification: Orally communicate to LCpl V_ certain indecent language, to wit: “I hate niggers” and “If blacks were separated they would be nothing”.
Awarded forfeiture of $645.00 per month for 2 months, reduction to PFC. Not appealed.

030517:	Applicant provides three-page written rebuttal in response to NJP of 
030517.

030518:	Counseled for deficiencies in performance and conduct.  [You received Bn NJP on 030517 for Violation of Articles 134 of the UCMJ.  At 0600, 030510 you told LCpl V_ in the billeting tent that “you hate niggers” and that “if blacks were separated they were nothing”.  These racist comments are unacceptable and will not be tolerated in the Marine Corps.  At no time should any Marine have to hear another Marine talk with such disrespect and utter racism.  That tears at the very fabric that holds the Corps together as a band of brothers.  Uttering something that will drive a wedge between Marines of different races or genders is unsat and should never be done.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  Applicant chose to make a statement.

030525:	Applicant notified of intended recommendation for discharge by reason of misconduct due to a pattern of misconduct and that the least favorable characterization of service he may receive is a general (under honorable conditions).

030525:	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 and to submit a statement.

030525:	Commanding officer, 2d Maintenance Bn recommended discharge general (under honorable conditions) by reason of misconduct due to a pattern of misconduct.  The factual basis for this recommendation was your two Page 11s and two nonjudicial punishments.

030525:	SJA review determined the case sufficient in law and fact.

030531:	GCMCA, Commanding General, 2d Force Service Support Group directed the Applicant's discharge general (under honorable conditions) by reason of misconduct due to a pattern of misconduct.

030611:	Active duty with General Support Maintenance Co, 2d Maintenance Bn, 2d Force Service Support Group terminated.

031117:	Applicant disenrolled from the Platoon Leaders Class Program.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030620 with a general (under honorable conditions) for misconduct due to a pattern of misconduct (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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 (C and D).

Issue 1:  The Applicant contends that his discharge was unjust because his nonjudicial punishments (NJPs) and his subsequent administrative processing for separation were improper and/or inequitable.  There is no evidence of impropriety, inequity, or procedural irregularities in the Applicant's discharge.  The Applicant's misconduct is clearly documented and the Applicant was afforded the appropriate due process during the processing of his case.  Characterization of service as general (under honorable conditions) 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 NDRB found that the aggravating factors in this case outweighed any mitigating and extenuating factors either presented by the Applicant or contained in his record.  Aggravating facts noted by the Board included NJP on two occasions for violations of the Uniform Code of Military Justice (UCMJ) specifically, hazing and communicating indecent language.  While the Board recognizes the positive aspects of the Applicant’s service, an upgrade to honorable would be inappropriate.  Relief is therefore denied.

The Applicant further contends that the two mistakes he made during his career do not represent a pattern of misconduct.  For the Applicant’s information, the decision to administratively separate a service member is made independently of the imposition of NJP.  Per regulation, separation processing of a service member for misconduct due to a pattern of misconduct may be initiated when there have been a minimum of two incidents, occurring within one enlistment, which are of a discreditable nature or which reflect conduct prejudicial to good order and discipline.  Accordingly, relief on this basis is not warranted.

Issue 2:  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, and certification of non-involvement with civil authorities are examples of verifiable documentation that should be provided to receive consideration for relief based on post-service conduct.    At this time, the Applicant has not provided documentation for the Board to consider an upgrade.

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 documentation to support any claims of post-service accomplishments or any other evidence related to his discharge 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 P1900.16F), effective 01 Sep 2001 until Present. 

B.  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.

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.

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