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

 ex-Pvt, USMC
Docket No. MD05-00388

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, D.C. Metropolitan area.  The Applicant did not list any representative on the DD Form 293.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 20051003.  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. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated
Applicant’s issues as submitted to the Board on 20051003, superseding the Applicant’s issues indicated on DD Form 293:

Issue 1.  “Unfair treatment by N.C.O. D_ requested to seek counsel was not able to adapt, request was denied.”

Issue 2.  “Requested mass on several occasions and was told not to be certain staff N.C.O. for reasons not able to adept and unfair treatment”

Issue 3.  “Certain name N.C.O.s picked with me could not be 30 seconds late for formation without being punished other certain named privates were not punished this took a very mental change on mind with my attitude”

Issue 4.  “When told that I was being discharged requested mass and nothing was done”

Issue 5.  “After being discharged although felt mentally violated still kept a positive mind frame and bettered my life became a police officer several letters verifying my post service behavior.”

Issue 6.  “Done several community, help for New Orleans flood donations, Red Cross help serving the homeless moving several items Just trying to help”

Applicant’s issues as verbally amended during his personal appearance hearing on 20051003:

Issue 1.  The Applicant’s discharge was improper because the Applicant was denied counsel.  

Issue 2.  The Applicant’s discharge was improper because the Applicant was denied the right to request mast.

Issue 3.  The Applicant’s discharge was inequitable because the Applicant was punished disproportionably to other Marines who were not punished for the same types of minor offenses.
 
Issue 4.  The Applicant’s discharge was improper because the Applicant tried to request mast and was denied request mast.
 
Issue 5.  The Applicant’s discharge is inequitable due to the Applicant’s post-service accomplishments as a police officer.

Issue 6.  The Applicant’s discharge is inequitable due to the Applicant’s post-service community service, to include assisting in recovery operations for the city of New Orleans and donations made in support of recovery operations.

Documentation

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

6 pages from Applicant’s medical record
Copy of Applicant’s DD214
3 pages of medical records from Physical Therapy Plus
2 pages of medical records from Jefferson Regional Medical Center
2 pages of medical records from an unknown institution
Page entitled “Income Received and Expected From All Sources” undated
Statement from T_ J. W_, M.D., dtd January 11, 2005
Ltr from Applicant, undated
Ltr from C_ J_, undated
Ltr from Chief D_ R. S_, Sr., undated
Ltr from E. W. M_, dtd September 12, 2004, unsigned
Ltr from R_ H_, undated, unsigned
Ltr from W_ H. G_, Dean of Student Life, undated, unsigned
Ltr to Applicant from D_ D. I_, Veterans Service Center Manager, dtd April 3, 2001
VA Form 21-4138, Statement in Support of Claim, dtd September 27, 2004

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		960214 - 960408	COG

Period of Service Under Review:

Date of Enlistment:  960409		Date of Discharge:  970916

Length of Service (years, months, days):

	Active:    01  05  08
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  34

Highest Rank:  LCpl			MOS:  3531

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.1 (5)			Conduct:  3.3 (5)

Military Decorations:  None

Unit/Campaign/Service Awards:  None

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. 6210.3.

Chronological Listing of Significant Service Events:

970212:	Counseled for deficiencies in performance and conduct.  [Conduct unbecoming of a United States Marine by demonstrating a general lack of integrity, discipline and professionalism in actions and communications with staff non-commissioned officers and officers.  During Battery Field Operation 970203-6 SNM.  SNM took undue liberties from his duties and willfully misinterpreted his standing orders to fit his personal desires.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970213:	Counseled for deficiencies in performance and conduct.  [Lack of: Integrity, dependability, initiative, enthusiasm, bearing, unselfishness, knowledge, and loyalty.  Poor work ethic and a near disrespectful attitude toward the chain of command and military courtesies.  Since your arrival in the Battery you have continually shown a total inability or unwillingness to conform to Marine Corps standard.  You have lied, hidden from work details, always bordering on violations of the UCMJ.  Continued efforts of your section head and his NCOs to help you have gone unheeded.  Because of your newness to the Marine Corps you were removed from you section and placed in the Battery Office in an effort to teach you additional skills, provide you with a chance to redeem yourself, and to provide guidance from the most senior NCOS in the Battery.  This resulted in unfinished work, and borderline disrespect to a commissioned officer.  This behavior will not be tolerated!]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970228:	NJP for violation of UCMJ, Article 86 (2 specs):
Specification 1: Unauthorized absence on 0800-0815, 970226.
Specification 2: Unauthorized absence on 1430-1545, 970226.
Violation of UCMJ, Article 89:
Specification: Disrespect towards a Superior Commissioned Officer
Violation of UCMJ, Article 91:
Specification: Insubordinate conduct towards a noncommissioned officer.
Violation of UCMJ, Article 115:
Specification: Malingering.
Awarded forfeiture of $505.00 per month for 2 months, correctional custody for 30 days, reduction to E-2.  Not appealed.

970724:	NJP for violation of UCMJ, Article 92:
Specification: Violate base order by driving aboard MCB while on state suspension on 2233, 970718.
Violation Article 115: While on light duty was seen by SSgt H_ playing basketball between 970617 and 970717.
Awarded forfeiture of $450.00 per month for 2 months, restriction and extra duties for 45 days, reduction to E-1.  Not appealed.

970805:	Applicant notified of intended recommendation for discharge, under other than honorable conditions, by reason of misconduct due to a pattern of misconduct as evidenced by your 2 Battalion NJP’s and paragraph 6105 service record book entry.  

970806:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

970806:	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 based upon your pattern of misconduct as evidenced by your 2 Battalion NJPs.

970813:	Applicant waived administrative discharge board.

970825:	Applicant waived administrative discharge board.

970910:	SJA review determined the case sufficient in law and fact.

970915:	Commanding General, 2d Marine Division, II Marine Expeditionary Force directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

001116:	NDRB documentary record review Docket Number MD00-00679 conducted.  Determination: discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19970916 under other than honorable conditions for misconduct due to a pattern of misconduct (A and 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 3.  The Applicant contends that his discharge was inequitable because the Applicant was punished disproportionably when compared to other Marines who committed the same infractions.  The Applicant’s service was marred by two retention warnings and two nonjudicial punishment proceedings for violations of Articles 86, 89, 91, 92 and 115 of the UCMJ.  The Applicant’s violations of Articles 89, 91, 92 and 115 of the UCMJ are considered serious offenses.  There is no evidence in the record, nor did the Applicant provide any evidence, to support the contention that the Applicant was unduly punished for his infractions of the UCMJ or that the Applicant’s resulting administrative separation was inequitable.  The Applicant’s under other than honorable conditions discharge was warranted.  Relief denied.

Issues 1, 2, 4.  The Applicant contends that his discharge was improper because the Applicant was refused counsel, instructed not to request mast and that he did request mast and the request was denied.  There is no indication in the record, nor did Applicant provide any evidence, to support the contention that the Applicant was denied counsel.  On 19970815, in a signed statement, the Applicant waived his right to an administrative discharge board after consultation with legal counsel.  During the Applicant’s hearing, the Applicant testified that he verbally indicated an intention to request mast, but never submitted a written request mast.  The Board found the Applicant’s issues based on propriety without merit.  Relief denied.

Issues 5,6.  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.

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 P1900.16E), effective 31 Jan 97 until 31 Aug 01. 

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 to a superior commissioned officer, Article 91, insubordinate conduct, Article 92, failure to obey an order/regulation and Article 115, malingering.

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