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

FOR OFFICIAL USE ONLY

 ex-Pvt, USMC
Docket No. MD05-01381

Applicant’s Request

The application for discharge review was received on 20050809.  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 designated a private representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060427.  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:
“My discharge was inequitable because it was based on one isolated incident on July 7, 2003 while placing my life on the line for my country in Iraq in stressful situations.  I had a petty personality conflict with a fellow marine with no other adverse actions since completing corrective action anger management, post traumatic stress disorder & alcohol abuse classes.   The discharge was improper because it was prejudicial in that it did not take into account the recommendations of superiors and that it was sought upon the nearing of my expiration of service.  The infractions cited in the commanding officer’s recommendation occurred prior to corrective actions and did not warrant admin separation until my enlistment was due to expire.”

Additional issues submitted by Applicant’s representative:
“Issue 1:  Whether applicant received a fair & impartial hearing on discharge by not having the recommendations of his superior officers, whom had direct knowledge of his military ethics & bearing, considered prior to granting of an Other Than Honorable Discharge.

Issue 2:  Whether applicant was denied an honorable discharge because he was within 3 months of expiration of enlistment and had disclosed his intentions not to re-enlist.

Issue 3:  Whether the discharge panel was appropriate in considering matters that had already been adjudged and corrective action had already been undertaken.  Whether the double jeopardy standard was utilized when matters already adjudicated were considered.

Issue 4:  Whether applicant’s certificate of appreciation for work  & service in “operation Iraqi Freedom” should be rewarded with an other than honorable condition when his duties were patriotic & life threatening.”

Documentation

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

Applicant’s statement, undtd
Applicant’s statement, undtd
Six pages from Applicant’s service record
Character Reference ltr from V_ R. W_, dtd August 1, 2005
Applicant’s DD Form 214
Character Reference ltr from T_ N. K_, undtd

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	20000303 - 20000326	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20000327		Date of Discharge:  20040114

Length of Service (years, months, days):

Active:    03  09  18
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  22

Years Contracted:  4

Education Level:  12				AFQT:  80

Highest Rank:  PFC				MOS:  1141

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.1 (11)				Conduct:  3.9 (11)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Sea Service Deployment Ribbon, National Defense Service Medal, Presidential Unit Citation.

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:

000303:	Pre-service CG-level moral waiver granted.

001030:	Counseling:  Advised of deficiencies in performance and conduct (Violations of Article 134, specifically, SNM has been counseled on numerous occasions for various violations of the Uniform Code of Military Justice, to wit: sleeping in classroom/compound, failure to shave, out of uniform, and late/unauthorized absence.  SNM’s actions were prejudicial to good order and discipline in the armed forces.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

001214:	Counseling:  Advised of deficiencies in performance and conduct (Violation of Article(s) 92 of the UCMJ.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

001227:	NJP for violation of UCMJ, Article 92: On or about 2100, 001122, Failure to obey an order or regulation, to wit; wearing an earring.
	Award:  Forfeiture of $502 per month for 2 months, restriction and extra duty for 6 days, reduction to E-1.  Reduction suspended for 6 months.  Not appealed.

010123:	Counseling:  Advised of deficiencies in performance and conduct (Violation of Article 92, specifically sleeping in class/on school grounds.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010124:	Reduction in pay grade awarded at NJP on 001214 vacated.

010125:	Counseling:  Advised of deficiencies in performance and conduct (Violation of Article 92, specifically sleeping in class/on school grounds.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010205:	NJP for violation of UCMJ, Article 86: On or about 0600, 010130 - 0645, 010130, SNM was UA fr appointed place of du.
Violation of UCMJ, Article 134: On or about 1400, 010201, Failure to train.
	Award:  Forfeiture of $521 per month for 2 months, restriction and extra duty for 45 days.  Not appealed.

010205:	Counseling:  Advised of deficiencies in performance and conduct (Violation of Article(s) 86 and Art 134 of the UCMJ.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010221:	Counseling:  Advised of deficiencies in performance and conduct (Substandard academic performance and an inability to assimilate technical material in the AIMS Maintenance Course.  SNM’s performance is below minimum acceptable academic standards and SNM has been DISENROLLED.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010223:	Counseling:  Advised of deficiencies in performance and conduct (Violation of Article 115 of the UCMJ.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010306:	NJP for violation of UCMJ, Article 115:  On or about 010124 – 010213, Malingering.
	Award:  Forfeiture of $521 per month for 2 months, correctional custody for 21 days.  Forfeiture suspended for 6 months.  Not appealed.

011114:	Counseling: This morning, after 96 hours of liberty, Pfc. W_ and Pfc. B_(Applicant) came in with unsatisfactory uniforms and appearance, both Marines were verbally counseled and were told that they were going to be re-inspected after chow, right before they were cut loose for chow they were reminded of this by me (Cpl. L_).  At 1300 hours the platoon came back from chow, Pfc. B_(Applicant) came in with his coveralls and was told to change over into cammies so that I can inspect him.  After inspecting Pfc. W_ and telling him that his appearance was still unsatisfactory, I went ahead and inspected Pfc. B_(Applicant), SNM had a dirty cover and not marked with his name, SNM had a bad shave his nails were dirty and too long, his blouse and trousers were not properly pressed and he had his safety boots on, I then reminded this Marine that he had told me that he was going to come in squared away before he went to chow, at this time the Marine told me he was ready for inspection and I said “you are lying” SNM then asked me if I was calling him a liar, I asked him again if he took the time to get ready for this inspection and he told me that he had given a hair cut to Pfc. W_ after graving something to eat and that he did not have much time but that he was ready for inspection, I told him again that he was lying and he told me not to call him a liar again raising his voice and loosing his bearing, that he never lies and that he did not liked people calling him a liar, he said this to me about three more times, I continued with the inspection when I finished I asked him if he had pressed his cammies he replied “yes Corporal” and I said “why are you lying to me” SNM then took off his blouse and cover and with a high tone of voice he told me that he didn’t liked people calling him a liar and that he wasn’t scare, I told him to put his blouse back on and he said he wanted to talk to GySgt. D_, we did and he was informed of this incident, after hearing both sides of the story he ordered Pfc. B_(Applicant) to come in ready for inspection the next morning and that he could be inspected in his office if it made him more comfortable.

011210:	Counseling:  On the morning of 011206 I (Cpl. L_) went to check on the RASC site, which is up for Desert Knight, Pfc. B_(Applicant) is in charged of the generators here and for the keeping of electrical power, on that morning when I got there at around 0730 SNM was not around I filled up the generators and had both of the 5 gal.  Cans filled too.  When I showed up to Pfc. B_(Applicant)’s room in Brks. 13109 at 0845, SNM told me that some one from the site told him to go to BAS and that BAS was close and that the sign on the door read: “BAS will be open at 0800”.  SNM said that he was going to go back but the pain was too strong and that he was lying on the floor in his room.  I brought Pfc. B_(Applicant) to BAS and waited for him there when he was done I took him back to the RASC site on the way down there SNM reminded me of the gun that he owns and that if he was discharged from that Marine Corps that he was taking some one down with him because most likely he was going back to prison anyways, when we got there I told the Sergeant in charge of the site at that time (Sgt. G_) that Pfc. B_(Applicant) was not supposed to leave the site unless he was going to chow or to sleep at the Barracks in which case he had to show back up the next morning at 0600 in utilities.  Before I left Pfc. B_(Applicant) asked to talk to me and he pointed to a spot away from Sgt. G_ I headed in that direction and he followed then he putted his hand on my shoulder I turned around shaking his hand off and before I could tell him not to do that again, he asked me why we treated him like that and that we thought he was less a man than us loosing his bearing and moving his arms back and forward, then the Sergeant got in between us and told him that she did not liked the way he was talking to me nor his tone of voice, Pfc. B_(Applicant) then told the Sergeant that he was going to loose it that one more word from her and that he was going to loose it, the Sergeant then told me to go to the shop and ask Master Sergeant M_ if he could come down to the site, I did as told and Master Sergeant M_ went down there to talk to the Sergeant and to Pfc. B_(Applicant).
SNM was allowed to stay at the site as part of the Engineer detachment after he said that he was going to be able to control himself and that he could carry on with the mission.

020402:	NJP for violation of UCMJ, Article 91: At Svc Co, 9th Comm Bn, I MHG, Insubordinate conduct toward Cpl C_ on 16 Mar 02.
	Award:  Forfeiture of $289 per month for 1 month, restriction for 35 days.  Not appealed.

020611:	Acknowledged understanding of eligibility but not recommended for promotion to LCpl for the month of July 02 promotion period because of prior NJP.  Applicant chose not to make a statement.

020927:	Counseling:  Advised of deficiencies in performance and conduct (PFC B_(Applicant), L_ J. is producing a pattern of misconduct, this behavior is unacceptable and will not be tolerated.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

030222:	NJP for violation of UCMJ, Article 86: At HQ Co 9th Comm Bn, I MHG, SNM was found in his room at barracks 13109 and was UA on 11Sep02.
Violation of UCMJ, Article 92 (2 specs):
Specification 1: At HQ Co 9th Comm Bn, I MHG, SNM was caught sleeping and was derelict in his duties on 11 Sep 02.
Specification 2: At HQ Co 9th Comm Bn, I MHG SNM was found with a loaded weapon in his room on 26 Sep 02.
	Award:  Forfeiture of $511 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.

030716:	Counseled for being NONREC for the month of August 2003 due to the NJP with suspensions he received in Feb of 2003.

030727:	NJP for violation of UCMJ, Article 91:  At A Co 9th Comm Bn, I MHG, Insubordinate conduct toward noncommissioned officer, to wit: LCpl B_(Applicant) conducted himself in a disrespectful manner by threatening to do physical harm to Cpl M_.
Violation of UCMJ, Article 128: At A Co 9th Comm Bn, I MHG, Assault, to whit LCpl B_(Applicant) physically shoved Cpl M_ to further escalating the situation.
	Award:  Forfeiture of $248 per month for 2 months, restriction and extra duty for 45 days.  Not appealed.

030821:	Counseling:  Advised of deficiencies in performance and conduct (Violation of Article 92, UCMJ.  SNM  disobeyed a lawful order and did not adhere to the 48 hour liberty boundary.  Violation of Article 86, on 030819 SNM was not at his post as the duty NCO.)

030904:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  The factual basis for this recommendation was six counseling’s and six nonjudicial punishments.  Applicant informed the least favorable characterization of service possible is under other than honorable conditions.

030904:	Commanding Officer, Service Company, 9th Communication Battalion, recommended the Applicant’s discharge under other than honorable conditions due to a pattern of misconduct.

030904:	Commanding Officer, 9th Communication Battalion, recommended Applicant’s discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

030912:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

031012:	Acknowledged understanding of eligibility but not recommended for promotion to PFC for the month of Nov 2003 years because of pending administrative separation.

031106:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct, specifically a pattern of misconduct, that such misconduct warranted separation, and recommended discharge under other than honorable conditions.

03xxxx:	SJA review determined the case sufficient in law and fact.  [Date unreadable.]

031209:	GCMCA, Commanding General,  I Marine Expeditionary Force, directed the Applicant's discharge under other than honorable conditions by reason of misconduct, specifically a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040114 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).  

In response to Representative’s Issue 4:  When a Marine’s service 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 received 10 counseling sessions for his performance and conduct.  The Applicant’s service was marred by six nonjudicial punishment proceedings for violations of Articles 86, 91, 92, 115, 128 and 134 of the UCMJ.  The Applicant’s violations of Articles 91, 92, 115 and 128 are considered serious offenses that could have been punished at special court-martial and resulted in a bad-conduct discharge.  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.

In response to the Applicant’s Issues:  The Applicant contends that his discharge was inequitable because it was based on “one isolated incident.”   The Applicant was discharged by reason of misconduct due to a pattern of misconduct.  The Applicant’s Commanding Officer recommended the Applicant’s discharge based on the Applicant’s six nonjudicial punishment proceedings and the 6105 counselings in the Applicant’s record.  Relief on this basis is denied.

In response to the Applicant’s Issues and Representative’s Issues 1-2:  The Applicant implies that his discharge was improper because the recommendations of his superiors were not taken into consideration by the Administrative Discharge Board.  The Applicant’s representative requests the Board determine whether the Applicant’s alleged disclosure of his intention not to reenlist was improperly or inequitably considered.  The Applicant was recommended for discharge with a characterization of under other than honorable conditions by reason of misconduct due to a pattern of misconduct by both his Company and Battalion Commanders.  There is no evidence in the record or in the documentation provided by the Applicant that the Administrative Discharge Board failed to properly and equitably consider the recommendation of the Applicant’s command or the personal recommendations that the Applicant provided to the NDRB which were respondent exhibits in the Applicant’s Administrative Discharge Board.  There is also no evidence in the record that the Applicant’s command or the Administrative Discharge Board considered the Applicant’s alleged admission of his intention not to reenlist.  Relief on this basis is not warranted.

In response to the Applicant’s Issues and Representative’s Issue 3:  The Applicant contends that his discharge was inequitable because, “the infractions cited in the commanding officer’s recommendation occurred prior to corrective actions and did not warrant admin separation until my enlistment was due to expire.”  The Applicant further contends that his discharge was inequitable because, “it was sought upon the nearing of my expiration of service.”  The Applicant’s representative requests the Board considered whether it was “appropriate” for the Administrative Discharge Board to consider “matters that had already been adjudged” and whether the “double jeopardy standard was utilized.”  Regulations stipulate that, for the purposes of characterization of service and evaluation for retention, the member’s conduct and performance in his current enlistment may be considered.  Additionally, the Applicant is reminded that Marines are required to conform to the Uniformed Code of Military Justice throughout their enlistment.  The issue regarding “double jeopardy” is without merit.  Neither the Applicant’s administrative separation nor his nonjudicial punishment are considered judicial proceedings; administrative separation is not considered punitive in nature.  Relief denied. 

The following is provided for the edification of the Applicant.  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.  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, Article 92, failure to obey order/regulation, Article 115, malingering or Article 128, assault.

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