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

FOR OFFICIAL USE ONLY

 ex-Pvt, USMC
Docket No. MD05-01183

Applicant’s Request

The application for discharge review was received on 20050706.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060131.  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:

“I was discharged under other than honorable conditions stated by the unit as bad conduct - non court martial.  The conduct has been determined to have stemmed from psychological trauma.  Please see the enclosed documentation for further justification.”

Documentation

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

Applicant’s DD Form 214 (Member 1)
Applicant’s DD Form 215, dtd April 10, 2001
Twenty-six pages from applicant’s service record
Character Reference ltr from applicant’s parents, O_ A. C_ Sr and R_ C. C_, dtd June 	15, 2005
Character Reference ltr from H_ W_, undtd
Notice of certification from State of California – Health and Welfare Agency, dtd May 	12, 2005
48 pages from medical record
Certificate of acceptance to USMC Delayed Entry Program, dtd January 10, 1998
Certificate of completion of USMC Drivers improvement course, dtd June 17, 1998
Certificate of completion for School of Infantry, dtd June 26, 1998
Certificate of completion of Joint Safety Center, MCB Pendleton, Respiratory 	Protection course, dtd December 16, 1999
Correspondence from CO, Assault Amphibian School Battalion, dtd August 30, 1999
Certificate of completion of Marine Corps Institute course for metalworking and 	welding operations, dtd August 1999
Cover letter for certificate of completion of Marine Corps Institute (MCI) course, undtd
Diploma for USMC Machinist Course, dtd July 12, 1998 to October 19, 1998
Amateur radio license effective January 17, 2004 (2 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19980109 - 19980302	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19980303		Date of Discharge:  20010410

Length of Service (years, months, days):

Active:    03  01  08
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  23

Years Contracted:  4

Education Level:  12				AFQT:  73

Highest Rank:  LCpl				MOS:  2161

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (9)				Conduct:  3.7 (9)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Marksman Rifle 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:

990513:	Applicant acknowledged understanding of eligibility but not recommended for promotion to LCpl due to lack of maturity and judgment.  Applicant chose not to make a statement.

990615:	Applicant acknowledged understanding of eligibility but not recommended for promotion to LCpl for the promotion period of July 99 because lack of leadership.  Applicant chose not to make a statement.

990818:	Counseling:  Advised of deficiencies in performance and conduct (Unauthorized use of another Marine’s phone code.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000125:	Counseling:  Advised of deficiencies in performance and conduct (Allegations of assault committed upon a Marine’s civilian spouse resulting in a domestic disturbance of 200B Inchon Drive, Deluz Housing, MCB, Camp Pendleton, CA.  Conduct was prejudice to the good order and discipline of the Armed Forces.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000725:	Applicant examined at Mental Health Department, Naval Hospital, Camp Pendleton, CA.  Applicant referred for an evaluation of “dreams of death.”  
	Assessment: Axis I: Occupational Problem, R/O Alcohol Abuse.
	Axis II:  Deferred.
	Axis III:  L, S1, radiculopathy.
	Axis IV: Occupational, financial stressors, legal problems, limited support.
	Axis V: GAF 65.
	Plans/Recommendations:  Return to clinic as needed.  Patient declines therapy and meds.  Patient declines treatment as evidenced by ending evolution feeling misunderstood.  Patient advised to abstain from alcohol.  He is psychiatrically fit for duty and fully accountable for his actions.  Suicidal risk is considered low/acceptable.

000817:	NJP for violation of UCMJ, Article 121: At AAS Bn, MCB, Camp Pendleton, CA, on or about, 2054, 25 March 00 to 2054, 3 June 00, stole a phone code, the property of Cpl J_ K. A_ and charging over $200.00 in calls to his phone bill.
	Viol Art 92: At AAS Bn, MCB, Camp Pendleton, CA, on or about, 27 June 00, was derelict in performance of duties by willfully disobeyed the Company 1st Sergeant previous counseling on utilizing others phone code without permission.
	Viol Art 123a: At AAS Bn, MCB, Camp Pendleton, CA, on or about 15 June 00, with intent to defraud and for the procurement of accessories, made a check to the Marine Corps Exchange in the the amount of $50.00, then knowing that he did not have sufficient funds in the bank for payment.
	Award:  Forfeiture of $563.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  Forfeiture suspended for 6 months.  Not appealed.

001125:	Applicant subject of Medical Board conducted at Naval Medical Center San Diego.  Primary diagnosis is L5-S1 left side, broad based disk bulge.
	Opinion:  The patient has not yet reached the maximum benefit of outpatient therapy.  
	Recommendation:  That the patient be placed on Limited Duty for approximately 8 months.

001213:	Applicant signed the NMC San Diego Statement of Patient Concerning The Findings of a Medical Board.  Applicant informed that it is the recommendation of the Medical Board of 25 November 2000 that he is to be returned to active duty for 8 months to expire 25 July 2001 with the limitations of no running, no heavy lifting, no forced marching, no impact activities.  Applicant chooses not to submit a statement in rebuttal.  

010202:	Forfeiture of pay awarded at NJP on 000817 vacated.

010202:	NJP for violation of UCMJ, Article 92: At AAS Bn, TrngCom, Camp Pendleton, CA, SNM willfully disobeyed MSgt R_’s order not to use LCpl G_’s Phone.
	Viol Art 92: At AAS Bn, TrngCom, Camp Pendleton, CA, on or about 1200, 9 Jan 01, SNM willfully disobeyed a general order by making personal phone calls from his BEQ room while in a roving sentry capacity.
Viol Art 90: At AAS Bn, TrngCom, Camp Pendleton, CA, on or about 11 Dec 00, SNM willfully disobeyed Capt A_’s order not to use any Marines phone access code or card.
Viol Art 121: At AAS Bn, TrngCom, Camp Pendleton, CA, SNM used LCpl G_’s phone access code without said name Marine’s permission.
	Award:  Forfeiture of $521.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  Forfeiture, restriction and extra duty suspended for 6 months.  Not appealed.

010315:	Applicant notified of intended recommendation for discharge by reason of a pattern of misconduct with the a characterization of service as under other than honorable conditions.  The factual basis for this recommendation was confirmed by nonjudicial punishment held on 2 February 2001 for violation of Article 92 X 2, 90, 121.  

010315:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.  

010315:	Commanding Officer, Assault Amphibian School Battalion recommended Applicant’s discharge under other than honorable conditions by reason of pattern of misconduct.  Commanding Officer’s comments:  “After considering all the evidence, it is recommended that this Marine be discharged from the Marine Corps.  It is further recommended that if discharge is to be effected, the characterization of service to be under other than honorable conditions.”

010323:	SJA review determined the case sufficient in law and fact.

010327:	GCMCA, Commanding General, Marine Corps Base, Camp Pendleton, CA 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 20010410 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 Applicant contends that his problems in the Marine Corps can be attributed to his “psychological trauma”.  While he may feel that this was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

When the service of a member of the U.S. Marine Corps has been honest and faithful, it is appropriate to characterize that service as honorable.  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 2 nonjudicial punishment proceedings for violations of Articles 90 (willfully disobeying superior commissioned officer), 92 (3 specifications of failure to obey an order), 121 (2 specifications of larceny), and 123A (checks, insufficient funds) of the UCMJ. In addition, the Applicant received 2 retention warnings, 2 non-recommendations for promotion, and had a suspended forfeiture of pay vacated due to continued misconduct.  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 is not warranted.

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, verifiable employment records, 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.  The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this 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 P1900.16E), 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, Articles 90 (willfully disobeying superior commissioned officer), 92 (failure to obey order, regulation), 121 (larceny), and 123A (checks, insufficient funds).

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