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

FOR OFFICIAL USE ONLY

ex-PVT, USMC
Docket No. MD05-01348

Applicant’s Request

The application for discharge review was received on 20050804.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable and the Narrative Reason for Separation be changed to “RE code.”  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 20060413.  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 and reason for 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 to the Board:

“I am requesting a discharge upgrade, also to change my re-enlistment code to allow me the opportunity to re-enlist in the United States Marine Corps.  Justification is submitted in my letters.”

Applicant’s Remarks:  “I hope that with the evidence that I am submitting will show that since my discharge, I have been a model citizen, a lot of things instilled in me from the Marines I use in my everyday life.  My exceptional leadership, appearance, behavior, and determination, are just a few things I still take great pride in, in my everyday life.  But now my ultimate goal is to become a United States Marine again.  Please take great consideration in allowing me the opportunity to become one of the elite again.  As I know and will show that I can and will be a great asset not only to my country, but also to the Marine Corps.  Thank you for your time and consideration.”

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

“To whom it may concern:

I am contacting you in regards to upgrading my discharge to honorable and also to change my re-enlistment code in order to allow me the opportunity to re-enlist into the United States Marine Corps.

The following issues are the reasons I believe my discharge should be upgraded to honorable:

The presumption of regularity that might normally permit you to assume that the service acted correctly in characterizing my service as less than honorable does not apply to my case due to the facts and evidence I am submitting.  I would like to first point out that my proficiency and conduct marks were always good.  From when I first went to boot camp, I always excelled in everything I was involved in, from my physical fitness tests, to the different classes I took.  I always took pride at being the absolute best I could.  I was a squad leader off and on as I believe the drill instructors realized my untapped potential.  One thing that really sticks out in my mind are on graduation day the General said “good morning Marines” and my company responded, “good morning sir, OOH-RAH”.  That was the greatest feeling I have ever had as I felt so proud of my accomplishment and felt such a sense of belonging.  I was looking forward to a long and successful career in the Marines.  I had gone to Marine combat training, which also went very well without problems.  I then was off to attend my military occupational specialty training school at an Army base at Fort Sill Oklahoma as an artillery forward observer.  Everything there also went well without incident and I found the class to be very fascinating as well as challenging.

I then was off for the second half of my MOS training, which was conducted at the naval amphibious base, Coronado CA.  This is were I had ran into problems which were a result of my young age and undisciplined attitude.  Although my record of promotions and my scores showed I was a good Marine, I started to exhibit poor judgment.  Looking back at this time I know my service was impaired by my youth and immaturity.  I have never received an Article 15 or non-judicial punishment or anything of that nature.  While stationed in Coronado, I met a woman Marine who subsequently in time I had gotten engaged to.  I placed my focus on my relationship instead of my duties as a Marine.  I started making small mistakes, and although it was petty things, it was still negative.  None of my actions were ever severe, but I take full responsibility for all of my actions.

I had then received orders to be stationed at the 3rd Marine division in Okinawa Japan.  My fiancé had received her orders to Quantico Virginia.  All my focus was on being with her and I took steps through my chain of command to attempt to be stationed with or near her.  When my chain of command was telling me no, I could not accept it because of the love I had for her, so I started focusing on other ways to be with her.  It was mentioned to me that I might be able to get out of the Marines.  My attitude was noticed and not accepted well by the chain of command.  A Major had told me that I could get out on a general discharge but the processing time would take months, but if I went after a discharge of other than honorable this would speed up the process.  I did not understand the consequences of this at the time and went ahead with the quickest way out, which was other than honorable.  This was a horrible decision on my part due to my lack of understanding about the discharge and my immaturity.

Although at that time I went ahead with the whole process, I do believe that the punishment that was placed on me at discharge was too harsh and it was much worse than most people receive for the same offense.

Being called a Marine was the most rewarding thing I have had, the lowest point was when I recently visited a recruiting office and was told that I could not be called a Marine unless I had my discharge upgraded.  Therefore I am hoping that an affirmative response from you will allow me to once again to fill the elation of serving my country proudly and once again being called a United States Marine.

I have moved back to my hometown near Chicago and as you can see from my previous employer letters I have been working full time the entire time.  Most things taught to me by the Marines are instilled in my everyday routines.  I attend church and try to to be the best at everything I do.  I exercise regularly and iron my clothes everyday.  I have been a model citizen and people who know me on the outside think that I was a model Marine, due to my leadership, appearance and good behavior.  

Yes I have made a few unfortunate mistakes due to immaturity while I was serving before, but please just try to see the man I am now.  The difference is night and day.  I have matured a hundred fold.  The experience I had went through had been the hardest lesson I ever had to learn.  This has made me grow up change my way of life.  Now, I want to redeem myself, I want to be awarded the title of United States Marine again.  I am proud of my life now and how I have turned it around and grown up and matured, but my ultimate goal is to be a Marine again.  If awarded the opportunity, I will serve with great pride and dignity; I want to be a part of the greatest fighting force in the world.  I want to stand side by side with the greatest men and women of the world.  I also I feel I will be able to help the younger Marines that may be headed down the wrong road like I did.  I want to wear the uniform again and give back to the organization and the country, I feel that I owe this to the Marines, and there is nothing that could fulfill me more.

I look forward to being a career Marine and serving with Honor, Courage and Commitment.  I ask for you to take the necessary actions to allow me to return to active duty.  I really do deserve the chance to be one of the elite again.

Thank you so much for all of your time and consideration.

Sincerely,

[signed]
J_ A D_(applicant)”

Documentation

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

Applicant’s DD Form 214  (Service 2)
Driver Improvement Course appointment card
Driver Improvement Course Completion Certificate for V_ F. N_ dtd October 10, 2004
Character Reference ltr from V_ N_, dtd March 8, 2005
Character Reference ltr from J_ R. S_, Director of Operations, dtd March 8, 2005
Character Reference ltr from A_ S_, Operations Manager, Kings Express, dtd March 7, 2005
Character Reference ltr from L_ B_, Terminal Manager, RM Trucking Co., dtd March 1, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive:  None
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19940823		Date of Discharge:  19950612

Length of Service (years, months, days):

Active:    00  09  20 
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  19

Years Contracted:  4 

Education Level:  12				AFQT:  39

Highest Rank:  PFC				MOS:  0800

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.2 (3)		Conduct:  3.7 (3)

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/ INVOL DIS (BOARD WAIVED) (PATTERN OF MISCONDUCT), MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.3.

Chronological Listing of Significant Service Events:

940823:	Applicant granted wavier for enlistment.

950206:	Counseling:  Advised of deficiencies in performance and conduct (Violations of Articles 86, 92 UCMJ.  First violation under Article 86, UCMJ for being absent from your appointed place of duty (Liberty Curtailment) to wit; Marine Battery 2/80th, USAFATC, Fort Sill from 2145, 950122 to 0700, 950122.  Second Violation under Article 92, UCMJ for dereliction in the performance of those duties in that he negligently and willfully failed to stay awake on his post as Fire Watch while at Marine Battery, 2/80th, USAFATC, Fort Sill on or about 0200, 950127 to 0415, 950127.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950206:	NJP for violation of UCMJ, Article 86:  UA (AWOL) from 2145, 950121 to 0700, 950122.  UA (AWOL) from mess duty formation on or about 0550, 950129.  Violation of UCMJ Article 92: Knowingly aware of regulations regarding firewatch, SNM did fall asleep during tour from 0200 to 415, 950127.  Award:  Forfeiture of $223.00 pay per month for 1 month.  Not appealed.

950301:	Counseling:  Advised of deficiencies in performance and conduct (Academically demonstrated lack of effort and initiative to correct study habits, and failure to follow instructions which contributed to poor academic performance.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950330:	Counseling:  Advised of deficiencies in performance and conduct (Not reporting to appointed place of duty (UA)), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950330:	NJP for violation of UCMJ, Article 86 (5 Specs):
	Specification 1: UA (AWOL) from 0700, 950301 to 0720, 950304.
	Specification 2: UA (AWOL) from 0730, 950310 to 0830, 950310.
	Specification 3: UA (AWOL) from 0730, 950317 to 0850, 950317.
	Specification 4: UA (AWOL) from 0730, 950323 to 0745, 950323.
	Specification 5: UA (AWOL) from 1300, 950323 to 1400, 950323.
	Award:  Forfeiture of $425.00 pay per month for 2 months, restriction and extra duty for 30 days, reduction to E-1.  Not appealed.

950412:	NJP for violation of UCMJ, Article 86 (3 Specs):
	Specification 1: UA (AWOL) from 0700, 950404 to 0730, 950404.
	Specification 2: UA (AWOL) from 0700, 950406 to 0729, 950406.
	Specification 3: UA (AWOL) from 0700, 950409 to 0730, 950409.
	Violation of UCMJ, Article 92:  Failure to obey a lawful order given by the Commanding Officer of EWTGPAC.
	Award:  Forfeiture of $200.00 pay per month for 1 month, restriction and extra duty for 20 days.  Not appealed.

950511:	Counseling:  Advised of deficiencies in performance and conduct (Not reporting to appointed place of duty at the appointed time (UA), failed to report for PT at 0630 on 2 May 1995 although previously instructed to do so.), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.

950511:	Counseling:  Advised of deficiencies in performance and conduct (Unauthorized use of government telephones.  After working hours on 24, 25 and 27 April 1995 and 1 May 1995 (Applicant) used a government telephone in the Administration Office to make $149.14 in unauthorized personal phone calls to Illinois, Florida, and South Carolina.).

950512:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct.  The factual basis for this recommendation was 3 NJP’s and failure to respond to counseling.  Applicant informed the least favorable discharge possible is under other than honorable conditions.

950512:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

950516:	Commanding Officer, Expeditionary Warfare Training Group, Pacific, recommended to Commanding General, Marine Corps Recruit Depot/Western Recruiting Region, that the Applicant be discharged under other than honorable conditions by reason of misconduct due to pattern of misconduct.  

950605:	SJA review determined the case sufficient in law and fact.

950606:	Commanding General, MCRD/WRR, directed that the Applicant be discharged under other than honorable conditions by reason of misconduct due to pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19950612 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).  

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 three retention warnings and three nonjudicial punishment proceedings for violations of Articles 86 and 92 of the UCMJ.  Violations of Article 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 his discharge should be upgraded because his “proficiency and conduct marks were always good” and that the “punishment that was placed on [him] at discharge was too harsh and much worse than most people receive for the same offense.”  The Applicant also contends that he made mistakes due to immaturity.  The Applicant was discharged by reason of misconduct due to a pattern of misconduct.  The Applicant committed nine violations of Article 86 of the UCMJ.  The Applicant used government phones without authorization, failed to stay awake on his post as fire watch and had poor academic performance.  The Applicant’s average proficiency and conduct marks, 3.2/3.7 respectively, are considered below average.  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.

The Applicant implies that his discharge should be upgraded on the basis of equity due his post service accomplishments.  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 requests a change in narrative reason.  The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted.  The summary of service clearly documents that misconduct due to pattern of misconduct was the reason the Applicant was discharged.  No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged.  Relief denied.

The Applicant requests that his discharge be changed so that he may re-enlist.  He also requests a change to his re-code.  The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment, educational opportunities or affect reenlistment.  Additionally, since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  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.  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 a lawful 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.

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