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USMC | DRB | 1999_Marine | MD99-00930
Original file (MD99-00930.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD99-00930

Applicant’s Request
The application for discharge review, received 990630, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a personal appearance hearing discharge review. The applicant did not list any representative on the DD Form 293. In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearings.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000424. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned impropriety in the characterization of the applicant’s service. The Board’s vote was unanimous that the character of the discharge shall change. The discharge shall change to: HONORABLE/SECRETARIAL AUTHORITY, authority: MARCORSEPMAN Par. 6214.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 It has been seven (7) years since my discharge from the USMC and the pain and disappointment of the condition of my discharge (other than honorable) still lingers in me.

I am seven years older and definitely wiser and would like to request your help in setting the record straight.
 I kindly and respectfully request for my discharge to be upgraded to "Honorable."
 History
I was accused and convicted, at Office Hours, of Article 123a - Making, drawing, or uttering check, draft, or order without sufficient funds.

While serving my punishment two (2) days later, I was charged with Article 90 - Willfully disobeying an order.

 My Response on Article 123a:

1. I did at the time, of drawing this check, have sufficient funds to cover this check.
2. I placed a "Stop Payment" on this check (See Enclosure (1)) when I learned that my wife had accidentally withdrawn funds from our account, and promptly remitted payment to MWR.
3. Under Article 123a it states "... unless the maker or drawer pays the holder the amount due within five days after receiving notice..." (Enclosure (2))

Which as stated above I promptly paid this debt.

 Response on Article 90:

1. Major F_ gave me two (2) orders which I obeyed to wit:
          A)       Close your checking Account
         B)       Bring a Statement of the Closed Account
 2. Present at my Office Hours were Major F_, I" Sgt M_, Mgysgt Y_, Gysgt M_, and Sgt D_.
3. Major F_ never gave me any order in relations to any female visitors. (Note: She resided in Barracks 1340.)

4. None of the Marines who were present at my Office Hours could testify that they heard Major F_ ever give me any order on female visitors. (Please see Enclosures (3-5))
5. Lastly, two days after the incident, on the bulletin board for all Marines to see they posted the Commanding Officer Policy on visitors. If it would have been posted prior, I would have abided by it. (Enclosure (6))

In conclusion, I have always been a good citizen and Marine. If called to serve in Operation Desert Storm I would have served my country proudly.

Even today if I could have my discharge upgraded to "Honorable" I would join the USMC Reserves and if I was sent to Kosovo I would go willingly.

I know The Marines take care of there own and I ask you to come to my aid in upgrading my discharge to Honorable.

Thank you for your time and consideration.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
First Citizens Bank statement
Copy of Article 123a, UCMJ
Ltr from MGYSGT B_ dtd 20 Sept 91
Ltr from GYSGT M_ dtd 20 Sept 91
Ltr form Sgt D_ dtd 20Sept91
Copy of CO policy letter dtd 14Aug91


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                880720 – 880920  COG

 Period of Service Under Review :
Date of Enlistment: 880921               Date of Discharge: 920120

 Length of Service (years, months, days):

         Active: 03 04 10
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 73

 Highest Rank: LCPL

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.7 (9)              Conduct: 3.6 (9)

Military Decorations: None
Unit/Campaign/Service Awards: Rifle Marksmanship Badge, NDSM

Days of Unauthorized Absence: None

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct-Pattern of misconduct (with administrative discharge board), authority: MARCORSEPMAN Par. 6210.3.

 Chronological Listing of Significant Service Events :

910314:  Counseled for deficiencies in performance and conduct, specifically you did, with full knowledge that you did not have sufficient funds in your checking account, issue post-dated worthless checks in the amount of $200 to the Express Check. It is to your credit that restitution was made in full. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued
910318:  NJP for violation of UCMJ, Article 123a: On 16Jan91, with intent to defraud, made 2 checks to the Express Check in the amount of $200 knowing that the account was closed.
         Award: Forfeiture of $400 per month for 1 month, extra duty for 45 days. Forfeiture suspended for 6 months unless sooner vacated. Not appealed.

910809:  NJP for violation of UCMJ, Article 123a: On or about 15Jul91, with intent to defraud, made a check to MWR in the amount of $200, knowing that he did not have sufficient funds in back for payment
Award: Forfeiture of $422 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. Not appealed.

 910919:  NJP for violation of UCMJ, Article 90: On or about 0030 12Aug91, did disobey a direct order given by the CO not to have a female in his quarters while serving punishment.
 Awarded forfeiture of $300.00 per month for 2 months, restriction and
extra duties for 45 days, reduced to E-1. Appealed.
911004:  Appealed denied.
911010:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by page 11 entries and 3 non-judicial punishments for worthless checks and disobedience to orders..
911001:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
911210:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to a pattern of misconduct, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

920117:  SJA review determined the case sufficient in law and fact.

920123:  GCMCA [CG, MCB, Camp Lejeune, NC] 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 920130 under other than honorable conditions for misconduct due to a pattern of misconduct (A and B). The Board presumed regularity in the conduct of governmental affairs (C). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was not proper.

In the applicant’s issue 1, the Board agrees with applicant that he should not have been charged with the NJP on 910809 for violation of Article 123a. The applicant proved to the Board that he paid the debt immediately upon notification of insufficient funds. The UCMJ, Article 123a states that one will not be charged with this offense if “…the maker or drawer pays the holder the amount due within five days after receiving notice, …, that the check, draft, or order was not paid on presentment”. The Board also determined that the instructions given the applicant by the CO conducting the Article 15, were not clear and were questionable, as evidenced by the statements of 3 Marines who attended the NJP. Relief granted.
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 [ e.g., Article 123, forgery].
C. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

E. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 obtain a copy of DoD Directive 1332.28 by writing to:
                  DA Military Review Boards Agency
                  Management Information and Support Directorate
                  Armed Forces Reading Room
                  Washington, D.C. 20310-1809

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:

                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                  Washington Navy Yard
                  720 Kennon St SE Rm 309
                  Washington, D.C. 20374-5023     


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