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

FOR OFFICIAL USE ONLY

 ex-PVT, USMC
Docket No. MD05-00850

Applicant’s Request

The application for discharge review was received on 20050413.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions).  The Applicant requests a personal appearance hearing before the board in the Washington, D.C. Metropolitan area.  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.  The Applicant did not designate a representative on the DD Form 293.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050915.  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.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated from an attached letter to the Board:

“To whom it may concern,

I D_ D. M_ (Applicant) was discharged on Other than honorable conditions from the United States Marine Corps on March 5, 2004, due to a pattern of misconduct and larceny charges.  Although the Marine Corps didn’t give me a second chance, I think I should be given a second chance, because during the past year I have been loyal to the U.S. military by talking to J.R.O.T.C. students about the benefits and what the military has taught me.  During this time period, I’ve realized my actions as an active duty Marine were unacceptable and foolish.  I didn’t have the same discipline as I once did as a basic Marine.  Being a civilian with an Other than honorable discharge has taught me how to be more responsible and how to be a better person with good morals.  To show that I am a better person and a better Marine, I ask that my discharge be up graded to a General discharge so I can be reinstated back into the Marine Corps.  I know what I did can’t be undone, and I do regret it, but I can’t have a future if I’m dwelling on the past, all I can do is learn from my mistakes.  So I ask that you take this statement under consideration, because the Marine Corps was the best decision I ever made, and I think I owe it to my family, the Marine Corps, and last but not least myself to show that I’m a well rounded disciplined, hardworking, responsible person.  Thanks in advance.

D_ D. M_ (Applicant)”

Documentation

Only the service record book was reviewed.  The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	20001229 – 20010909		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20010910		Date of Discharge:  20040305

Length of Service (years, months, days):

Active:    02  05  26  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  14 days
	Confinement:		  47 days

Age at Entry:  17 (Parental Consent)

Years Contracted:  4 

Education Level:  12				AFQT:  50

Highest Rank:  LCpl				MOS:  0621

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0 (5) 				Conduct:  3.7 (5) 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  National Defense Service Medal, Rifle Marksman Badge.

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:

020722:	Counseling:  Advised of deficiencies in performance and conduct (concerning misconduct; specifically, violation of MARCORBASEJAPANO P3000.1B, for not having been on base when the island went into TC-1E.), necessary corrective actions explained, sources of assistance provided, and discharge warning issued.  Applicant chose not to make a statement.

030204:	Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of February because of poor judgment and leadership failure.  Applicant chose to make a statement.

030410:	Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of May because of maintaining the standards of a LCpl.  Applicant chose to make a statement.

030430:	Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of June because of lack of leadership and judgment.  Applicant chose to make a statement.

030613:	Company NJP for violation of UCMJ, Article 86:  
Specification:  In that Lance Corporal M_ (Applicant) with 3rd Intelligence Battalion, III MHG, III MEF, did on or about 0700, 2 June 2003, without authority, absent himself from his place of duty at which he was required to be, to wit:  3rd Intel Bn, HQ, GSP, located at Camp Hansen and did remain so absent until on or about 0700, 3 June 2003.
Violation of UCMJ Article 91:  
Specification:  In that Lance Corporal M_ (Applicant) with 3rd Intelligence Battalion, III MHG, III MEF, having received a lawful order from Sergeant T_, a noncommissioned officer, to report to Sgt J_, an order which it was his duty to obey, did on board Camp Hansen, willfully disobey the same.
	Award:  Restriction and extra duty for 14 days.  Not appealed.

030630:	Company NJP for violation of UCMJ, Article 86:  
Specification:  In that Lance Corporal M_ (Applicant) did, on or about 0700, 21 June 2003, without authority, absent himself from his appointed place of duty at which he was required to be:  failure to check in with the DNCO while on restriction at times 0700 and 0900.
	Violation of UCMJ, Article 92:
	Specification:  In that Lance Corporal M_ (Applicant) did, on or about 0700, 21 June 2003, failed to obey an order set forth by the Company Commander, and order which it was his duty to obey, did on board Camp Hansen, willfully disobey the same.
	Award:  Forfeiture of $336.00 pay per month for 1 month (Forfeiture of $118.00 pay per month for 1 month suspended for 6 months), restriction and extra duty for 14 days.  Not appealed.

030709:	Battalion NJP for violation of UCMJ, Article 86:
	Specification: In that Lance Corporal M_ (Applicant) did, on 4 July 2003, while on restriction left his appointed place of duty to Gate 2 street with LCpl’s M_ D. J_, and C_ S. F_.
	Violation of UCMJ, Article 92 (2 Specs): 
Specification I:  In that Lance Corporal M_ (Applicant) failed to sign out in the liberty logbook for emergency contact purposes.
Specification II:  In that Lance Corporal M_ (Applicant) while at Gate 2 street, not being of age, consumed alcoholic beverages, and was stopped by Camp Hansen Camp Guard upon reentering the camp.
	Award:  Forfeiture of $500.00 pay per month for 2 months, reduction to E-2 and confinement to CCU for 30 days.  Not appealed.

030709:	Forfeiture of pay awarded at NJP on 030630 vacated due to continued misconduct.

030725:	Battalion NJP for violation of UCMJ, Article 90:  
	Specification: In that Private First Class M_ (Applicant) while on restriction did enter a fast food restaurant.
	Violation of UCMJ, Article 92:
	Specification:  In that Private First Class M_ (Applicant) did violate his restriction that was assigned by the BN Commander.
	Award:  Reduction to E-1.  Not appealed.

030725:	Applicant placed on administrative legal hold.

031216:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 107 (2 Specs):
	Specification 1:  In that Private D_ D. M_ (Applicant), U. S. Marine Corps, 3d Intelligence Battalion, III Marine Expeditionary Force, Okinawa, Japan, on active duty, did, at Okinawa, Japan, on or about 16 October 2003, with intent to deceive, make to Sergeant R. L. L_, U. S. Marine Corps, an official statement, to wit:  “I found the Palm Vx Personal Organizer a long time ago.”, or word to that effect, which statement was totally false, and was then known by the said Private M_ (Applicant) to be so false.
	Specification 2:  In that Private D_ D. M_ (Applicant), U. S. Marine Corps, 3d Intelligence Battalion, III Marine Expeditionary Force, Okinawa, Japan, on active duty, did, at Okinawa, Japan, on or about 20 November 2003, with intent to deceive, make to Investigator K_ A. C_, CID, official statements, to wit:  “I knew the pile that the palm was in was going to DRMO.  I didn’t think that anybody noticed or cared because, I thought it was going to get DRMOed.” And, when asked whether he knew that taking the Palm was unlawful, answering “No.”, or words to that effect, which statements were totally false, and were then known by the said Private M_ (Applicant) to be so false.
	Charge II: violation of the UCMJ, Article 121:
	Specification:  In that Private D_ D. M_ (Applicant), U.S. Marine Corps, 3d Intelligence Battalion, III Marine Expeditionary Force, Okinawa, Japan, on active duty, did, at Okinawa, Japan, on or about 16 October 2003 steal a Palm Vx Personal Organizer (serial number 10GK18F0669M) and accessories, military property, of a value of less than of $500.00, the property of U. S. Government.
	Finding: to Charges I and II, the specifications thereunder, guilty.
	Sentence: Forfeiture of $767.00 pay per month for 1 month, restriction for 26 days and 17 days of confinement.
	CA action 031216:  Sentence approved and ordered executed.
	Applicant did not object to Summary Court Martial trail.

031223:	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.  The factual basis for this recommendation was one page 11 counseling entry, four page 12 entries and one Summary Court Martial all regarding multiple acts of misconduct.

031224:	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.

031231:	Counseling:  Advised that the Commanding Officer, 3d Intelligence Battalion is recommending that you be Administratively Separated from the Marine Corps by reason of misconduct due to a pattern of misconduct.  Necessary corrective actions explained and sources of assistance provided.  Applicant chose not to make a statement.

031231:	Commanding Officer, 3rd Intelligence Battalion, recommended to Commanding General, III Marine Expeditionary Force, via Commanding Officer, III MEF Headquarters Group, that the Applicant be discharged under other than honorable conditions by reason of misconduct due to pattern of misconduct.  Commanding Officer’s comments:  “Private M_ (Applicant) has repeatedly displayed a disregard for official orders (whether personally given to him by seniors or those written into directive/orders).  After counseling failed to impress upon him the importance of following orders, Private M_ (Applicant) was given NJP as a means to correct his behavior.  Restriction imposed at NJP is an appropriate and effective punishment for minor infractions, to the extent that the punished Marine willingly complies with the order.  However, Private M_ (Applicant) deliberately and successively (with full knowledge of what he was doing wrong) broke restriction every time it was imposed on him.  His open disregard for the authority of both his Company and Battalion Commanders to impose punishment on him led to Private M_ (Applicant) being recommended for administrative separation.  While being processed for separation, the command learned that Private M_ (Applicant) had knowingly stolen government property.  With NJP no longer a viable form of punishment, Private Merchant was tried at a Summary Court Martial.”

040107:	Acknowledged understanding of eligibility but not recommended for promotion to PFC for the month of February because of Summary Court Martial.  Applicant chose not to make a statement.

040112:	Commanding Officer, III MEF Headquarters Group, forwarded recommendation to Commanding General, III Marine Expeditionary Force, that the Applicant be discharged under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

040115:	SJA review determined that the Summary Court Martial of 031216 had jurisdiction and the sentence adjudged and approved were legal.

040116:	SJA review determined the administrative separation proceedings were sufficient in law and fact.

040126:	Commanding General, III Marine Expeditionary Force, directed via Commanding Officer, III MEF Headquarters Group, the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

040203:	Commanding Officer, III MEF Headquarters Group, forwarded to Commanding Officer, 3d Intelligence Battalion, recommending 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 20040305 by reason of misconduct due to a pattern of misconduct (A) 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 (B and C).

The Applicant desires an upgrade in order to be reinstated in the Marine Corps.  In reviewing the Applicant’s records, the Board found irrefutable evidence that a pattern of misconduct occurred between 20020722 and 20031216.  Indeed, the Applicant’s records contain:
•	a counseling for misconduct;
•	four counseling entries not recommending promotion;
•	two company level non-judicial punishment proceedings for unauthorized absence, insubordination, and failure to obey orders;
•	two battalion level non-judicial punishment proceedings unauthorized absence, failure to obey orders, and willfully disobeying lawful order; and
•	a Summary Court Martial conviction for false official statements and larceny.
These negative aspects of the Applicant’s service served to determine the discharge characterization of under other than honorable conditions, which he received.  The Board found no impropriety or inequity.  Reinstatement in the Marine Corps does not serve to provide a foundation upon which the Board can grant relief.  The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, and is not authorized to change a reenlistment code.  On this basis, relief is denied.

Reenlistment policy of the Marine Corps is promulgated by the Commandant, United States Marine Corps, Code MMEA, 3280 Russell Road, Quantico, VA 22134.  Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment.  A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  

The Applicant contends that he should be given a second chance as evidenced by his claim of talking to J.R.O.T.C students during the past year about the benefits of the military.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question, but the Board found no such impropriety or inequity.  While 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 Board 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.  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, verifiable employment records, documented community service, and certification of non-involvement with civil authorities are examples of documentation that should have been provided to receive consideration for relief based on post-service conduct.  At this time, the Board found that the Applicant’s statements concerning post-service conduct, without documented evidence, do not mitigate the offenses for which he was discharged.  No relief is granted on this basis.

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 V, Para 502, Propriety.

C.  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