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

 ex-Pvt, USMC
Docket No. MD05-00479

Applicant’s Request

The application for discharge review was received on 20050126.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions and the reason for the discharge be changed to “As deemed Appropriate”.  The Applicant requests a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050511.  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 and reason for 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 stated on the application:

1.  “I feel I was treated unjustly.  I have included copies of entries from my Service Record Book for your review.  Also you’ll find a letter from me on the matters given.

Dear Sir,

I’m writing you in concerns of the Discharge status and reenlistment code on my DD 214.  I’m writing in hopes that you’ll take deep consideration of my situation and make any change for the better.

When I decided to enlist in the U.S. Marine Corps, I wanted to be the best Marine I could possibly be.  I had decided against going to college because I wanted much more of a challenge, mentally and physically.  When I successfully completed all training, I wanted to go straight out to my first duty station.  I was given the opportunity to go further in school, but I chose to go to my duty station.  When I first arrived, things looked like they would be great, with an accepting of the fact that I was stationed in the desert (Twenty Nine Palms, CA).  For a while things looked as though they’ll get better and I’d be able to look past the fact that I was in the Hot desert.  With the everyday stresses of work, location, and my young age, I made some bad decisions.  I was late to my appointed place of duty quit frequently due to stress, being tired, and trying to be a family man.  There are other things in my records and the fact that I was not one of the favorites of my superiors.  My superiors felt the need to,” get rid of me” as opposed to help me.  The 1st Sgt of H&S Co. during this time stated to me, “B_ (Applicant), your superiors don’t like you, and neither do I.  I told your Lieutenant, every chance he get, to put your feet to the fire”.  As to say any mistake I make, punish me for it.  I went to the Battalions SgtMjr on this matter and nothing was done.  Because of my frame of mind and my young age during this time I felt that anything I did, or didn’t do I would be in trouble for it, thus causing me to always ask my Sgt. Before doing anything, giving him the impression that I needed to be guided by the hand.  In conjunction of all occurrences, I sustained an ankle injury while on a PT run with the platoon, that was looked at as I was malingering even after having it looked at and X-rays.  Surgery was offered, I refused because of a childhood injury.

I have enclosed copies of entries from my Service Record Book, and Medical file listed as items 1-5.  As you’ll see I was consistently under the microscope!

Item 2
As I have stated, I was late quit frequently due to stress and being tired.  I was consistently denied advancement in pay grade after being stripped of pay and rank, I was counseled on financial responsibility.  If I wasn’t allowed to advance in pay grade how can I afford to pay any bills!

Item 3
While driving marines to a training exercise in Camp Pendleton Ca. on an unpaved road, I had to swerve left and right to avoid pot wholes, while driving, I heard other marines telling Pfc. B_ to sit down.  This Marine was whacked in the face with a tree branch from an adjacent tree that hung over the road.  I was told that everyone was interviewed, and they all said it was my fault.

Item 4
I found a telephone calling card in the phone booth of the motor-T motor pool.  Unfamiliar with the name on the card and my frame of mind, I made phone calls home, in need of someone to talk to.  When confronted about this from my GySgt, I owned up to it and offered to pay for the usage.  He stated to,” Oh your gonna do more than pay with money”.

Please consider the fact that since this time I’ve matured a great deal, remarried and are presently trying to make a better way of life for my Wife and our kids.  It’s been almost Ten years and this form of discharge stands in the way of me achieving this goal; I still have hopes of serving my country proudly in what ever form possible

P.S.  If you need to contact me, I can be reached @ (telephone number and e-mail address omitted)

Thank You,

A_ B_ (Applicant)
(Applicant's social security number omitted)”

Documentation

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

Applicant’s DD Form 215
Applicant’s DD Form 214
Sixteen pages from Applicant’s service record

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		940812 - 950123	COG

Period of Service Under Review:

Date of Enlistment:  950124		Date of Discharge:  970912

Length of Service (years, months, days):

	Active:    02  07  19
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  42

Highest Rank:  LCpl			MOS:  3531

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (7)			Conduct:  4.2 (7)

Military Decorations:  None

Unit/Campaign/Service Awards:  MM, NDSM

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:

960328:	Counseled for deficiencies in performance and conduct.  Not at appointed place of duty on 960328 at 0600, resulting in another Marine having to take his motor transportation run.  Applicant was called by NCO at 0620 on 960328 at place of residence.  Applicant disrespected NCO by hanging up the phone before the NCO could say two words to him.  Applicant did not report to the motor pool until 0700 on 960328.  After being questioned by the NCO on deck, Applicant lied to NCO about calling the wrong phone number.  Source of assistance of provided.

960613:	NJP for violation of UCMJ, Article 128:
Specification: Drove a 5-ton truck in a negligent manner on 960312, which caused bodily harm to a PFC.
Violation of UCMJ, Article 92:
Specification: Disobeyed DivO 11240.32E on 960312 by operating his vehicle in an unsafe and unprofessional manner.
Awarded forfeiture of $488.00 per month for 1 month, restriction for 14 days, extra duties for 45 days, and reduction to E-2.  Not appealed.

960805:	Special Court Martial:
	Charge I: violation of the UCMJ, Article 134:
	Specification: Did, from about 960426 to 960429, with intent to defraud, falsely pretend to MCI that he was GySgt I. R_, USMC, by using GySgt R_'s telephone calling card number, then knowing that the pretenses were false, and by means thereof did wrongfully obtain from MCI, services of a value of about $147.48.
	Findings: to Charge I and specifications thereunder, guilty.
	Sentence: Confinement for 30 days, reduction to E-1.
	CA 961003: Sentence approved and ordered executed.

970228:	Applicant informed eligible but not recommended for promotion to PFC for the month of March due to lack of responsibility, constant supervision for the simplest of task, displaying poor judgment, and never taking initiative to complete any given task.  Applicant advised that failure to take corrective action may result in administrative separation or judicial proceedings.

970325:	Applicant informed eligible but not recommended for promotion to PFC for the month of April due to lack of responsibility, constant supervision for the simplest of task, displaying poor judgment, and never taking initiative to complete any given task.  Sources of assistance provided, disciplinary and discharge warning issued.

970402:	Counseled for deficiencies in performance and conduct.  Financial irresponsibility concerning indebtedness to the Consumer Adjustment Corporation in the amount of $800.19.  The correspondence from this corporation was dated 970323 and received by Applicant's command on 970401 informing the command that Applicant is indebted $213.96 in late charges.  This is clearly displaying a lack of financial responsibility as a U.S. Marine to pay just debts.  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970410:	Counseled for deficiencies in performance and conduct.  Not being at the appointed place of duty on 970408 at 0600 for PT formation.  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970410:	Applicant informed eligible but not recommended for promotion to PFC for the month of May 1997 due to displaying lack of responsibility, requiring constant supervision for the simplest of tasks, displaying poor judgment, and not taking initiative to complete any task given.  Sources of assistance provided, disciplinary and discharge warning issued.

970521:	Applicant informed eligible but not recommended for promotion to PFC for the month of June due to lack of responsibility, requiring constant supervision for the simplest of tasks, displaying poor judgment, and never taking initiative to complete any given tasks.  Sources of assistance provided, disciplinary and discharge warning issued.

970521:	Counseled for deficiencies in performance and conduct.  Financial irresponsibility and lack of responsibility in dealing with financial situation.  Sources of assistance provided, disciplinary and discharge warning issued.

970610:	Applicant informed eligible but not recommended for promotion to PFC for the month of July due to lack of responsibility, requiring constant supervision, and displaying no initiative.

970702:	NJP for violation of UCMJ, Article 86:
Specification: Unauthorized absence 0600-0800, 970606 from H&S Co, 1st Tank Battalion.
Awarded restriction for 60 days.  Not appealed.

970807:	Applicant notified of intended recommendation for discharge by reason of misconduct due to the commission of a serious offense and a pattern of misconduct as evidenced by the following:  On 18 June 96 you received battalion office hours for violation of articles 128 and 92 of the Uniformed Code of Military Justice.  On 5 August 96 you were convicted of violating article 134 of the Uniformed Code of Military Justice at Special Court-Martial.  On 17 July 97 you received battalion office hours for violation of article 86 of the Uniformed Code of Military Justice.  I have determined that you no longer possess potential for further service and, accordingly, your retention is not warranted.  The least favorable characterization of service which you may receive is Under Other Than Honorable Conditions.

970807:	Applicant advised of rights and having consulted 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.

970807:	Commanding Officer, 1st Tank Battalion recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and a pattern of misconduct.  The factual basis for this recommendation was continued misconduct.  Commanding Officer's comments (verbatim):  Pvt B---'s action clearly demonstrates his unwillingness to adhere to those standards of conduct expected of all Marines, SNM has numerous Page 11 entries, and five non-recommenda-tions for promotion....Pvt B--- has received battalion level office hours on two separate occasions....Pvt B--- was convicted at a Special Court Martial on 960805....His continued retention would likely result in further incidents and his presence would constitute an undesirable and deleterious influence to the good order and discipline of the unit.

970826:	SJA review determined the case sufficient in law and fact.

970826:	GCMCA, Commanding General, 1st Marine Division (Rein) directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19970912 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).

Issue 1:  The Board could discern no impropriety or inequity in the Applicant's processing for discharge and, therefore, considered the discharge proper and equitable.  Specifically, the Applicant alleged that he was treated unjustly by his chain-of-command and this resulted in an other than honorable discharge.  The record, however, contains no evidence of any wrongdoing by the Applicant’s commanding officer or anyone else in the Applicant's chain-of-command with regard to the discharge process.  The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary.  As such, this Board presumed that the Applicant’s discharge was regular in all respects.  Additionally, the Applicant’s service was marred by four formal counselings for deficiencies in performance and conduct, two nonjudicial punishment (NJP) proceedings for violations of Articles 86, 92, and 128 of the UCMJ, and one special court-martial for violation of Articles 134 of the UCMJ.  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 on this basis is denied.

The Applicant also implies that his separation was improper because he was being processed for a medical discharge.  The Applicant must understand that DoD disability regulations do not preclude a disciplinary separation.  SECNAVINST 1850.4C stipulates that separations for misconduct take precedence over potential separations for other reasons.  Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended.  Regardless, the NDRB does not consider the circumstances surrounding the Applicant’s stated condition to be of sufficient nature to exculpate the Applicant’s misconduct.  In fact, the NDRB sees no connection between the Applicant’s misconduct and his medical condition.  Relief on this basis 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.  Verifiable proof of 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.  Examples of such documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  At this time, the Applicant has not provided any documentation for the Board to consider an upgrade.  Relief on this basis is currently denied.

With respect to changing the Applicant's reenlistment code, the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Marine Corps and is not authorized to change a reenlistment code.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  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 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 P1900.16E), 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 92 Failure to obey order or 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