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

FOR OFFICIAL USE ONLY

 ex-PFC, USMC
Docket No. MD05-00660

Applicant’s Request

The application for discharge review was received on 20050302.  The Applicant requests the Narrative Reason for Separation be changed to “General under Honorable or Honorable.”  The Applicant requests a personal appearance discharge review before a traveling panel closest to Portland OR.  The Applicant designated Douglas County Veterans Service Office as the representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area.  The NDRB also advised that the Board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051006.  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 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:

“1.  I do not have a DD-214 for 1st period of service.  Time is accumulated.  The DD 214 shows total time.  All I have for the first period of service is the “Honorable discharge” certificate.

2.  The reason that I requested a court-martial was that I knew I would not be treated fairly at my command especially regarding conspiracy.  My friend who plead guilty got 14-days restriction for the same charge.  My JAG officer told me that they would “stick me” with something even though I was found “not guilty” of the major charges, because once I asked for Court-Martial in lieu of Battalion, NJP 45-45 (because I was not guilty). and, in fact they charged me with the driving-related offense and the 50 cal offense.  I feel I need to appear before the Board regarding these issues.

3.  There were 8 letters of support in court martial please review.”

Additional issues submitted by Applicant’s representative (Douglas County Veterans Service Office):

“Dear M. R_,

Thank you for sending the copies of Mr. E_ (Applicant)’s Discharge Review paperwork.

Regarding your 6/21/05 letter and “issues” to present to the Board: I have known S_ E_ (Applicant) since November 2002 when he first came to my office, sent by the local Employment Division to find out if he was eligible for any VA Entitlement based on his first term of Honorable Service.

During the first interview I asked if he would like to request a Discharge upgrade.  I advised him that it was a very difficult process, that I would obtain his military records but that he had to do most of the work.  He was quick to answer that he did want a discharge review for upgrade and that he would be more than willing to help himself by taking on the tasks I would give him.  He wrote his own affidavit.  He obtained letters of support from co-workers, family friends, relatives, and supervisors. One of the letters is from CWO J_ K_ I hope that CWO K_’s letter is weighted heavily because he was there at the time and testified on S_’s behalf along with a large number of other Marines.  That is superior support.

S_ has told me that if he had a chance to re-enlist he would and he would not have to think twice about it.  I have seen him work harder than anyone to facilitate his review.  The resulting letters show more support and confidence in him than I usually see even in older veterans, in fact, in twenty years I have only seen this kind of support for one other individual--a Vietnam Combat Marine! This says a lot for S_’s character.

After an exemplary first enlistment, it does not fit seem logical that his second enlistment would have ended poorly unless, at the time, there were extremely extenuating circumstances.

For these reasons I am giving support to S_ E_ and ask that the Board consider changing the character of his discharge to General, Under Honorable Conditions

Sincerely,

M_ N_
Veterans Service Officer”

Documentation

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

Applicant’s DD Form 214
Applicant’s honorable discharge certificate, dtd October 3, 2000
Character witness ltr from J_ K_, CWO, USMC, dtd February 10, 2003 (2)
Character Reference ltr from W_ B_, dtd February 1, 2005
Character Reference ltr from J_ M_, dtd October 21, 2004
Character Reference ltr from C_ S_, dtd January 31, 2005
Character Reference ltr from R_ W. B_, retired GMSGT USAF, dtd April 6, 2004
Character Reference ltr from S_ E. W_, dtd January 30, 2005
Character Reference ltr from J_ N. A_, dtd January 31, 2005
Letter from Applicant, dtd January 26, 2005 (2 pages)
Dell US Consumer Business, CSC Sales, Bronze Level plaque for FY04
Dell US Consumer Business, CSC Sales, Mentor of the quarter plaque for FY04
Navy and Marine Corps Medal citation for acts on April 28, 1999
Navy and Marine Corps Medal certificate for heroism, dtd March 8, 2001
1st endorsement for award of the Navy and Marine Corps Medal, undated
Article/statement on home fire (2 pages)
Article/statement on electrical problem causing trailer fire (2 pages)
Article/statement on memorial fund
Article/statement on memorial fund 

PART II - SUMMARY OF SERVICE

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

	Inactive: USMCR (DEP)	19970305 - 19970427	COG
	Active:   USMC	19970428 - 20001003	HON

Period of Service Under Review:

Date of Enlistment:  20001004		Date of Discharge:  20021113

Length of Service (years, months, days):

Active:    02  01  10  (Does not exclude lost time)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  24

Age at Entry:  23

Years Contracted:  4

Education Level:  12				AFQT:  35

Highest Rank:  Cpl				MOS:  3051

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.5*				Conduct:  3.0*

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Navy and Marine Corps Medal, National Defense Service Medal, Marine Corps Good Conduct Medal, Sea Service Deployment Ribbon, Letter of Appreciation (9)

*Extracted from SJA letter of 021106

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:

001004:	Reenlisted this date for a term of 4 years.

010315:	Counseling:  Advised of deficiencies in performance and conduct (Unsatisfactory performance as indicated by Regimental School Corporals Course disenrollment letter dated 010305 for failure to meet the required minimum standards in the Marine Corps PFT conducted on 010305), necessary corrective actions explained, sources of assistance provided, disciplinary warning issued.

010809:	NJP for violation of UCMJ, Article 91:
	Specification: In that Cpl E_ (Applicant), 1stRadBn, on or about 1750, 19 Jul 01, was disrespectful in language and deportment toward Sgt M_, a Noncommissioned Officer, then known by the said Cpl E_ (Applicant) to be a Superior noncommissioned officer, who was then in the execution of his office, by saying to him “No because I have to make sure the 1st deck is completed, if you want that done you have to see GySgt P_” and “I don’t want to supervise, I don’t feel the need to do anything except personal effects, and I don’t care if I’m administratively demoted to LCpl” and by throwing a pad of paper across the shop and replying with insubordination in front of most of H&S Company.
	Award:  Forfeiture of $367 per month for 1 month, restriction and extra duty for 14 days.  Not appealed.

010910:	Acknowledged understanding of eligibility but non recommendation for promotion to Sergeant for the month of October, November, December/4th quarter, 2001 promotion period because of recent NJP.  Applicant chose not to make a statement.

011017:	NJP for violation of UCMJ, Article 92:
	Specification: In that Cpl E_ (Applicant), 1stRadBn, having knowledge of a lawful order issued by LCpl P_, MCBH PMO, to remain in his vehicle (during a traffic stop), an order which it was his duty to obey, did on board MCBH K-Bay, on or about 2156, 30 September 2001, fail to obey the same.
Violation of UCMJ, Article 117:
Specification: In that Cpl E_ (Applicant), did on board MCBH K-Bay, on or about 2156, 30 September 2001, wrongfully use reproachful words to wit: profanity towards LCpl P_, a Military Policeman in his official duty capacity.
	Award:  Forfeiture of $692 per month for 2 months, restriction and extra duty for 45 days, reduction to E-3.  Not appealed.

020520:	Counseling:  Advised of deficiencies in performance and conduct (Pattern of misconduct:  The following deficiencies in your performance and/or conduct are identified: 6105 dated 010315 for PFT failure, NJP dated 010810 for Article 91 disrespect toward a NCO, pg 11 dated 010910 for non-recommended for promotion, NJP dated 011017 for Article 92 disobedience of a lawful order and Article 117 wrongfully use of profanity to a MP in an official duty capacity), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020801:	Report of Psychological Evaluation:
	AXIS I: Alcohol abuse.
AXIS II: Deferred pending psychological evaluation.
AXIS III: Shoulder injury.
AXIS IV: Occupational problems.
AXIS V: Current GAF: 45.  Highest GAF in past 12 months:  55.

020911:	Summary Court-Martial.
	Charge I: Violation of the UCMJ, Article 81:
Specification:  In that Lance Corporal S_ E_ (Applicant), U.S. Marine Corps, on active duty, did, on board Marine Corps Base Hawaii, Kaneohe Bay, Hawaii, on or about 16 May 2002, conspire with Private M_ M_ to commit an offense under the Uniform Code of Military Justice, to wit: break restriction, and in order to effect the object of the conspiracy the said Lance Corporal S_ E_ (Applicant) did meet Private M_ M_ in the parking lot near barracks 1053 and travel with him to Honolulu, Hawaii.
	Charge II: Violation of the UCMJ, Article 86:
	Specification:  In that Lance Corporal S_ J. E_ (Applicant), U.S. Marine corps, on active duty, did, on board Marine Corps Base Hawaii, on or about 0600 on 17 July 2002, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Headquarters and Service Company Office.
	Charge III: Violation of the UCMJ, Article 91:
	Specification 1:  In that Lance Corporal S_ J. E_ (Applicant), U.S. Marine Corps on active duty, having received a lawful order from Gunnery Sergeant O_ C. T_, U.S. Marine corps, a staff noncommissioned officer, then known by the said Lance Corporal S_ J. E_ (Applicant) to be a staff non commissioned officer, to assist in cleaning crew served weapons, an order which it was his duty to obey, did on board Marine Corps Base Hawaii, Kaneohe Bay, Hawaii, on or about 27 June 2002, willfully disobey the same.
	Specification 2:  In that Lance Corporal S_ J. E_ (Applicant), U.S. Marine Corps, on active duty, on board Marine Corps Base Hawaii, Kaneohe Bay, Hawaii, on or about 27 June 2002, was disrespectful in language toward Gunnery Sergeant O_ C. T_, a staff non commissioned officer, then known by the said Lance Corporal S_ J. E_ (Applicant) to be a superior staff non commissioned officer, who was then in the execution of his office, by saying to him “f_ this,” or words to that effect.
	Charge IV: violation of the UCMJ, Article 92:
	Specification 1:  In that Lance Corporal S_ J. E_ (Applicant), U.S. Marine Corps, on active duty, having knowledge of a lawful order issued by First Lieutenant M. F. S_, U.S. Marine Corps, not to operate his privately owned vehicle until repairs were made on the vehicle, an order which it was his duty to obey, did, on the Island of Oahu, Hawaii, on or about 21 May 2002, fail to obey the same by wrongfully operating his privately owned vehicle without making repairs to his vehicle.
	Specification 2:  In that Lance Corporal S_ J. E_ (Applicant), U.S. Marine Corps, on active duty, having knowledge of a lawful order issued by First Lieutenant M. F. S_, U.S. Marine Corps, not to operate his privately owned vehicle until repairs where made on the vehicle, an order which it was his duty to obey, did, on the Island of Oahu, Hawaii, on or about 1 June 2002, fail to obey the same by wrongfully operating his privately owned vehicle without making repairs to his vehicle.
	Specification 3:  In that Lance Corporal S_ J. E_ (Applicant), U.S. Marine Corps, on active duty, did, on board Marine Corps Base Hawaii, Kaneohe Bay, Hawaii, on or about 16 May 2002, fail to obey a lawful general order, to wit: paragraph 1137, U.S. Navy Regulations, dated 14 September 1990, by failing to report the breaking restriction of Private M_ M_.
	Finding: to Charge III and the specification thereunder and Charge IV and specification 1, thereunder, guilty.  To Charge I, Charge II and Charge IV, specifications 2 and 3 thereunder, not guilty.
	Sentence: Forfeiture of $250.00, confinement for 30 days, reduced to E-1.
	CA action 020911:  Sentence approved and ordered executed.

020917:	Applicant’s statement requesting reduction of confinement and reinstatement of one grade of rank and for retention.

020923:	Commanding Officer, 1st Radio Battalion, granted reinstatement to PFC, but declined the Applicant’s request for early release from confinement and indicated he would pursue the Applicant’s administrative separation.

021001:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to a pattern of misconduct and for personality disorder.  The factual basis for this recommendation is numerous violations of the UCMJ, to include being disrespectful towards a NCO, SNCO, and a Military Police who was in the execution of his duty, disobeyed a lawful order by not remaining in [the Applicant’s] vehicle during a traffic stop, and wrongfully used profanity towards another Marines, as supported by nonjudicial punishments and two page 11 entries and summary courts-martial of 020911.  Secondarily, the basis for this recommendation is for personality disorder as shown in his psychological evaluation by L_ M_, MA, at Tripler hospital.

021003:	Counseling:  Advised of deficiencies in performance and conduct (Misconduct due to pattern of misconduct and for personality disorder), advised being processed for administrative discharge action.  Applicant choose to make a statement.

021007:	Applicant advised of rights and having consulted with counsel, 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.

021008:	Commanding Officer, 1st Radio Battalion, recommended Applicant’s discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and for personality disorder.

021011:	Recommendation, based on a psychiatric evaluation on 020716 by Naval Medical Clinic Pearl Harbor, Mental Health Services:  Applicant manifests a longstanding disorder of character and behavior which is of such severity as to render the individual incapable of serving adequately in the USMC.

021015:	Applicant’s statement requesting retention.

021024:	Applicant completed Alcohol Impact Course.

021106:	SJA review determined the case sufficient in law and fact.

021112:	GCMCA, Commanding General, Marine Corps Base Hawaii, 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 20021113 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 records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).  The Board presumed regularity in the conduct of governmental affairs (E).

Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  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 retention warning for unsatisfactory performance resulting in disenrollment from corporal’s course.  The Applicant received a second retention warning for a pattern of misconduct.  The Applicant received two nonjudicial punishment proceedings and one summary court-martial conviction for violations of Articles 91, 92 and 117 of the UCMJ.  Violations of Articles 91 and 92 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.  Relief is not warranted.

The Applicant contends that he requested a court-martial because he knew he would be treated unfairly by his command at nonjudicial punishment.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that his command treated him unfairly at nonjudicial punishment, court-martial or in the Applicant’s subsequent administrative separation.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  Relief is not warranted.

The Applicant requested that the Board review the “8 letters of support in court martial.”  The Board could not find eight letters of support in the record.  The record does include the summaries of the testimonies of eight Marines that testified at the Applicant’s court-martial.  The Board found that the evidence of record, including the documents relating to the Applicant’s court-martial, does not support the contention that the Applicant’s court-martial, nonjudicial punishment proceedings or subsequent administrative discharge were improper or inequitable.  Relief denied.

Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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 Naval service.  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, documentation of community service and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided sufficient post-service documentation for the Board to consider.  Relief 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.  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 91, insubordinate conduct and Article 92, failure to obey an order/regulation. 

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