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

 ex-Pvt, USMC
Docket No. MD05-00615

Applicant’s Request

The application for discharge review was received on 20050223.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable or general/under honorable conditions.  The Applicant requests a documentary record discharge review.  The Applicant listed the Governor’s Veterans Outreach and Assistance Center as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050608.  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 waived), authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s and representatives issues, as stated on the application:

1.  “I served the military faithfully from “88” (being 18) to March “92”, if I am not mistaken.  I did inquire troubles (Office hours, UCMJ), because I was young.  My MOS was 0151 (administration) but during ‘Desert Shield/Desert Storm I was placed in the Communications unit of our battalion, in which we provided communication for the grunts from the SISCON.  I was also on the Forward Observer team for my battalion.  We moved to unsecured sites at least four (4) times a day, setting up communications for the battalion.  We’d move in, immediately digging countless numbers of fighting holes while setting up communication.  We even suffered a small missile attack while setting up shop during a move.  If anything happened to us our battalion would know not to follow.  My life was put on the line daily and willingly.  I got in trouble (UCMJ) for some words that came (proceeded) out of my mouth that I would not retract.  Just doing what the United States Marine Corps taught me.  Upon returning back to the United States, some people in my unit wanted me discharged.  Due to the fact that I was toward the end of my contract (a 4 year contract).  Due to this I was constantly given a hard time back in the states by my superiors.  Till the end of my current contract (ECC), my unit wanted me to remain, or be placed on restriction.  That broke the mold, and me being so young, it was to me the last straw.  So three (3) months before My ECC (end of current contract) I agreed to be discharged however way they wanted to do it.  I was young and dumb causing my intelligence to be played on, in which I left the service with no medical, or any type of benefits, allowing myself to be taken advantage of.  I need to have medical benefits, and an upgraded discharge.  My life is now falling in order.  I don’t want to have to hide my military career while looking for a brighter future.  Also, I deserve to be treated properly for my service.

2.  My M.O.S. was 0151 (Administration).  We were deployed to Saudi Arabia (1st Battalion, 11th Marines, 1st MarDiv).  Having been combat trained & having a fallout with a couple superior Non-Commissioned Officers, I moved, or was moved to the Communications unit (SISCON team).  During Desert Shield/Desert Storm I served as a Forward Observer (guinea pig team).  Moving four (4) times a day digging fight holes for each move.  If anything happened to us the rest of the unit knew not to follow.  During one (1) of these moves we (guinea pig team) suffered a small missile attack.

3.  Upon exiting out of the service, I was discharged having served 3 yrs & 9 mos.  My unit wanted to put me out and they tried, but it was told them to my understanding that I had to much time in.  In turn my unit (certain members) wanted to keep me bound (restricted to area) until my ECC.  Me being young & dumb I was fed up.  Opting to get out right then & there, as is.  “I WAS YOUNG”  In that situation I was taken advantage of!!!

4.  I have/hold a medal for the ‘Liberation of Kuwait’, but yet no Medical Benefits.  If I die I do not think that I will be buried as a Veteran.  I deserve Benefits & job assistance that is offered to Vets (school loans, Awareness, Expectance) I entered the service at a fresh 18 willingly to be the represented for my household to fight for freedom for our country.  I just want what I deserve which is to be treated as a Veteran for my service, receive benefits, and a presentable discharge.

5.  I was released 3 months before my (ECC) End of Current Contract, on an Other Than Honorable Discharge.  I once was told it was showing as an Dishonorable.  I don’t think that was true.  For my service I truly believe I deserve a desirable discharge.  I cherish the time I spent in the service, with the best guys you will ever meet.”

Documentation

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

None were submitted.

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		880401 - 880711	COG

Period of Service Under Review:

Date of Enlistment:  880712		Date of Discharge:  920304

Length of Service (years, months, days):

	Active:    03  07  23
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  53

Highest Rank:  PFC			MOS:  0151

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (7)			Conduct:  3.8 (7)

Military Decorations:  None

Unit/Campaign/Service Awards:  SASM with 2 Stars, KLM, NDSM, CAR, SSDR, LoA, RMB

Days of Unauthorized Absence:  None

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:

881202:	NJP for violation of UCMJ, Article 92:  Specification: Wrongfully and
unlawfully possessing alcoholic beverages at 1415 on 881126.  Awarded
forfeiture of $300.00 per month for 2 months, correctional custody for 30
days.  Not appealed.

890131:	Counseled for deficiencies in performance and conduct.  [Failure to comply with ScolsO P5000.15, in that Applicant failed to report back at the appropriate time from liberty at 2359 on 880130.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

890830:	NJP for violation of UCMJ, Article 86 (2 specifications):  Specification 1:  Fail to go to rifle range formation at 0500 on 890824.  Specification 2:  Fail to go to rifle range formation at 0500 on 890823.  Violation of UCMJ, Article 91 (2 specs):  Specification 1: Disrespectful to Sgt H_ by saying to him "He would not listen to anyone who threatened him”; Specification 2: Disrespectful to Cpl H_ by saying "He didn’t know s---".  Awarded forfeiture of $182.00 per month for 1 month, restriction and extra duties for 14 days.  Restriction for 7 days suspended for 6 months. Not appealed.

900125:	Applicant informed that he is eligible but not recommended for promotion to LCpl for the month of February because of a recent NJP conviction, continued lateness to place of duty, and argumentative nature.

900201:	Counseled for deficiencies in performance and conduct.  [Alcohol related incident during weekend liberty period at 21 Area E-Club.]  Disciplinary and discharge warning issued.

900216:	Applicant informed that he is eligible but not recommended for promotion to LCpl for the month of March because of lack of requisite leadership skills, continual display of poor attitude, lack of attention to detail, no motivation, and argumentative bearing and borderline disrespect to seniors.

900508:	Counseled for deficiencies in performance and conduct.  [Recurring lateness to his work section and a possible alcohol problem.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

900508:	Applicant informed eligible but not recommended for promotion to LCpl for the month of May because of lack of responsibility, judgment, and initiative.

900716:	Counseled for deficiencies in performance and conduct.  [Poor attitude, contempt for authority, lack of discipline.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

900824:	NJP for violation of UCMJ, Article 86:  Specification:  Unauthorized
absence from appointed place of duty at 0600 on 900823, to wit: FST
grinder for a 782 gear inspection;  violation of UCMJ, Article 92:
Specification: Knowingly disobeyed Sgt C_’s order to be ready for room inspection at 0500 on 900823.  Awarded forfeiture of $180.00 per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

900921:	NJP for violation of UCMJ, Article 86:  Specification: Unauthorized
absence from morning formation at 0530 on 900921.  Awarded forfeiture
of $360.00 per month for 2 months, restriction and extra duties for 45
days, reduction to E-1.  Forfeiture of $310.00 for 2 months and reduction
to E-1 suspended for 6 months.  Not appealed.

901011:	Vacate suspended forfeiture of pay awarded at Commanding Officer’s NJP dated 900921.

910110:	NJP for violation of UCMJ, Article 91 (3 specs):  Specification 1:
Disrespect toward an NCO at 2333 on 910107 by saying “aw man” and
ignoring Sgt R_ when told to get his rifle; Specification 2: Disrespect
toward an NCO on 0700, 910108 by slamming a wall locker door at
Sgt R_ when told about pending charges; Specification 3: Disrespect at
0700 on 910108 by saying “I don’t care write me up, I know what I’m
going to do: when Sgt R_ told him he was pressing charges; Violation of
UCMJ, Article 92 (3 specs):  Specification 1: Failure to obey order or
regulation by leaving his post without being properly relieved from fire
watch; Specification 2: Disobeyed a direct order by leaving his rifle
unattended on 2330, 910107; Specification 3: Disobeyed the order given
by Sgt R_ to help load gear on a truck on 2330, 910107; Violation of
UCMJ, Article 128: Specification: Assault on 0700, 910108 by pushing
Sgt R_.  Awarded forfeiture of $250.00 per month for 2 months, extra
duties for 60 days.  Forfeiture of $250.00 per month for 1 month
suspended for 6 months.  Not appealed.

910112:	Vacate suspended forfeiture of pay and reduction in rank awarded at Commanding Officer’s NJP dated 910110.

911023:	Applicant submits statement rebutting proposed administrative discharge,
questioning reasons for his non-recommendations for promotion, and
disputing the validity of his nonjudicial punishment (NJP) proceedings.

911205:	NJP for violation of UCMJ, Article 111.  Specification: Driving vehicle
while under the influence of alcohol at 0240 on 911108.  Awarded
forfeiture of $376.00 per month for 2 months, restriction for 45 days.
Restriction suspended for 6 months.  Not appealed.

920108:	Applicant notified of intended recommendation for discharge by reason of misconduct due to a pattern of misconduct.  Applicant advised that the least favorable characterization of service he may receive is under other than honorable conditions.

920108:	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 the right to submit a statement in rebuttal to the proposed separation.

920109:	Commanding Officer, 1st Battalion, 11th Marines recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  The factual basis for this recommendation was the Applicant’s disciplinary record of six nonjudicial punishments.  Commanding Officer's comments:  PVT W_ has been a disciplinary problem throughout his Marine Corps service....The character of this individual's service is clearly unacceptable.  He continues to remain a discipline problem.  He clearly demonstrates a lack of respect and contempt for authority and regulations.  Based on his background and current pattern of behavior, Private W_ will continue to be a discipline problem.  His actions are inconsistent with the standards and good order of the Marine Corps.

920204:	SJA review determined the case sufficient in law and fact.

920204:	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 19920304 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).

Issues 1, 3, and 5:  The Applicant contends that his disciplinary problems were the result of his being young and immature and that his being discharged so near his End of Current Contract (ECC) was inequitable.  The NDRB recognizes that serving in the U.S. Marine Corps is challenging and that our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country.  It must be noted that most members of the Marine Corps serve honorably and therefore earn their honorable discharges.  In fairness to those members, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due, regardless of their duration of service or the time remaining on their current enlistment contract.  The NDRB found that the Applicant's misconduct outweighed any mitigating and extenuating factors contained in his record.  The Applicant's misconduct is clearly documented in four formal counseling entries for deficiencies in performance and conduct; six nonjudicial punishment (NJP) proceedings for violations of the following articles of the UCMJ:  86 Unauthorized absence (4 total specifications), 91 Insubordinate conduct (5 total specifications), 92 Failure to obey order or regulation (5 total specifications), 111 Drunken driving, and 128 Assault; and two vacatings, due to continued misconduct, of portions of sentences adjudged at NJPs on 900921 and 910110.  An upgrade of the Applicant's discharge is not warranted.  Relief on this basis is denied.

Issue 2:  The Applicant further states that he deserves to be treated properly for his military service and that his service warrants the benefits afforded to veterans.  The NDRB recognizes the Applicant's service during the first Gulf War but cannot change the character of service and/or the reason for discharge unless there is an impropriety or inequity in the Applicant’s administrative separation.  The Board found no such evidence of impropriety or inequity in the Applicant’s discharge.  The Applicant's misconduct is clearly documented, as discussed above, and his discharge characterization accurately reflects his service to his country.  

Issue 4:  With regard to veteran's benefits, eligibility is determined by the Veterans Administration, not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing 
employment or educational opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  Relief on this basis is denied.

The following is provided for the edification of the Applicant.  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 Marine Corps.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of 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.  The Applicant has not provided documentation for the Board to consider.  Relief on this basis is denied.

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 P1900.16D), 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 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