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USMC | DRB | 1999_Marine | MD99-01092
Original file (MD99-01092.rtf) Auto-classification: Denied


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

ex-Cpl, USMC
Docket No. MD99-01092

Applicant’s Request
The application for discharge review, received 990811, requested that the characterization of service on the discharge be changed to Honorable. The applicant requested 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 000424. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain: UNDER CONDITIONS OTHER THAN HONORABLE/Misconduct-Civilian Conviction (admin discharge board required but waived), authority: MARCORSEPMAN Par. 6210.7.




PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. I HAVE RECEIVED AWARDS AND DECORATIONS. SEE BLOCK 13, DD214.

2. I HAD COMBAT SERVICE, RECEIVED COMBAT MEDAL/RIBBON FOR ACTION SERVED IN GRENADA AND BEIRUT LEBONON (SEE BLOCK 13, DD 214).

3. MY RECORD OF PROMOTION SHOWED I WAS GENERALLY A GOOD SERVICE MEMBER. RECEIVED PROMOTIONS THROUGH THRU SARGENT (E-5) WITHOUT ANY IMPLICATION.

4. THERE WERE OTHER ACTS OF MERIT AS EVIDENCED IN BLOCK 13, DD214, SUCH AS MERITORIOUS MAST AND GOOD CONDUCT WITH 1 STAR.

5. I WAS SO CLOSE TO FINISHING MY TOUR THAT IT WAS UNFAIR TO GIVE ME A UNDER OTHER THAN HONORABLE DISCHARGE, BECAUSE NOT ONLY WAS I NEARLY 3 YEARS ON MY CONTRACT, BUT I HAD PROVEN MYSELF AS AN HONORABLE SERVICE MEMBER BY RECEIVING 2 PRIOR HONORABLE DISCHARGE.

6. MY RECORD OF NJP/ARTICLE 15s INDICATES ONLY 1 ISOLATED OR MINOR OFFENSE IN MY 8 YRS, 6 MOS, 14 DAY CAREER.

7. THE PUNISHMENT I GOT AT DISCHARGE WAS TOO HARSH IT WAS MUCH WORSE THAN MOST PEOPLE GOT FOR THE SAME OFFENSE. THERE WERE 2 OR 3 OTHER MARINES THAT HAD THE SAME OR WORSE OFFENSE THAT RETAINED THEIR RANK AND WERE PROMOTED TO THE NEXT HIGHER RANK.

8. MY DEMOTION WHICH ULTIMATELY LED TO MY DISCHARGE WAS IMPROPER, BECAUSE MY RANK WAS TEMPORARILY REINSTATED THROUGH THE APPELLATE PROCESS, THEN THE COMMAND UTILIZED "DOUBLE JEOPARDY WHICH LED TO MY PERMANENT DEMOTION AND FINAL DISCHARGE.

CLOSING COMMENTS: ALTHOUGH MY ULTIMATE GOAL IS TO UPGRADE MY DISCHARGE TO AN HONORABLE CONDITION, I WOULD LIKE TO RESPECTFULLY REQUEST THAT MY HIGHEST RANK HELD (SARGENT E-5) BE REINSTATED BECAUSE I BELIEVE THAT THE PROCESS THAT THE COMMAND USED WAS UNFAIR AND BIAS.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Character Reference from M_ A_ dtd 5-17-1999
Character Reference from R_ J. W_, dtd 4-6-99
Character Reference from C_ G_ and P_ C. M_ dtd 4-9-99
Character Reference from P_ S_, undated
Copy of DD Form 214 (860131 - 881216)
Character Reference from T_ W. S_, GySgt, USMC, dtd May 28, 1999
Applicant's Letter of Recommendation on own behalf undated
Copy of DD Form 214 (790628 - 820625)
Record of Combat History-Expeditions and Authorized Awards

PART II - SUMMARY OF SERVICE

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

         Active: USMC              830606 - 860130  HON
          Inactive: USMCR           820626 - 830530  HON
         Active: USMC              790628 - 820625  HON
         Inactive: USMCR(J)                780929 - 790627  COG

 Period of Service Under Review :
Date of Enlistment: 860131               Date of Discharge: 881216

 Length of Service (years, months, days):

         Active: 02 10 16
         Inactive: None

 Age at Entry: 26                          Years Contracted: 4

Education Level: 12                        AFQT: 00

 Highest Rank: Sgt

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.4 (1)                       Conduct: 4.4 (1)

 Military Decorations: None

 Unit/Campaign/Service Awards: MM, AFEM, MCEM, NUC, CAR, HSM, SSDR (w/1 Star), GCM (w/1 Star)

Days of Unauthorized Absence: None

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

UNDER CONDITIONS OTHER THAN HONORABLE /Misconduct-Civilian Conviction (admin discharge board required but waived), authority: MARCORSEPMAN Par. 6210.7

 Chronological Listing of Significant Service Events :

870407:  Applicant arrested by Onslow County, State of North Carolina. Charged with indecent exposure. Released on a $100.00 Cash Bond.

870601:  Counseled for deficiencies in performance and conduct (frequent involvement with military and civilian authorities resulting in the revocation of your base driving privileges for one (1) year as a result of a DWI). Applicant advised of corrective action and assistance available. Discharge warning issued.

870707:  Applicant convicted in District Court, Jacksonville, North Carolina.
         Sentence: Be imprisoned in jail of Onslow County for no longer six months, assigned to North Caroline Department of Correction. With defendant's consent, sentence is suspended for 2 years on condition that he pay a fine of $100.00 and costs, not violate any laws of the State of North Carolina for 2 years and perform 24 hours community service, pay fee, continue with Mental Health counseling and follow their recommendation.
870804:  NJP for violation of UCMJ, Article 111: did on or about 870502 operate a motor vehicle while drunk.
 Awarded forfeiture of $200.00 per month for 2 months, restriction
for 60 days, reduction to E-4. Appealed.
870917:  Appeal of NJP on 870804 denied.
870922:  Counseled for deficiencies in performance and conduct (being implicated as a violator of Base Order P5560.2J in that he operated a motor vehicle on Marine Corps Base while under revocation of driving privilege and further advised that flagrant violations of orders could result in judicial proceedings for violating the UCMJ). Applicant advised of corrective action and assistance available.

880630:  Counseled for deficiencies in performance and conduct (being apprehended by civil authorities on 870620 for Indecent Exposure). As result of this misconduct, advised that it is the intentions of command to process for discharge under Other Than Honorable conditions. Applicant indicated that he desired to make a statement. .

880713:  Counseled regarding page 11 entry dated 880630 (applicant arrested by civil authorities for indecent exposure). Originally the applicant chose to make a statement on his behalf. He subsequently changed his mind and elected not to make a statement.

880823:  Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due to civilian conviction as evidenced by conviction on 7 Jul 1987 in Onslow County, District Court, Jacksonville, North Carolina for indecent exposure.

880823:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ, Article 27B, elected to appear before an Administrative Discharge Board.
880929:  After advisement by his military defense counsel of his options, the applicant decided to waive his right to have case presented before an administrative discharge board. Acknowledged that he was being recommended for an Other Than Honorable discharge and have decided to include with the waive, a statement for the Commanding General's consideration. Applicant later decided not to make a statement.

880823:  Commanding officer recommended discharge under Other Than Honorable conditions by reason of misconduct due a civilian conviction. The factual basis for this recommendation was civilian conviction on 7 July 1987 in Onslow county, District Court, Jacksonville, North Carolina.

881130:  SJA review determined the case sufficient in law and fact.

881130:  GCMCA [CG, 2d FSSG (Rein)] directed the applicant's discharge under Other Than Honorable conditions, by reason of misconduct due to civilian conviction pursuant to paragraph 6210.7.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 881216 under Other Than Honorable conditions for misconduct due to a civilian conviction (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 proper and equitable (D and E).

In the applicant’s issues 1 and 2, the Board determined these issues are without merit. The applicant claims he received awards/decorations and was involved in combat service. This is true but has nothing to do with his violations of the UCMJ or the characterization of his final discharge. The applicant was awarded Honorable discharges for his military service prior to his final enlistment. He appropriately received an under Other Than Honorable conditions discharge for his final enlistment, as a result of his misconduct during that specific period of time. The discharge was proper and equitable. Relief denied.

In the applicant’s issues 3 and 4, the Board determined these issues are without merit. The applicant claims his record of promotion shows he was generally a good service member. The applicant’s record also shows he received recognition for his generally good service, through personal/unit awards, meritorious mast and his promotions. But good past performance does not negate his being held accountable for his more recent misconduct. The applicant consciously violated the UCMJ and was justly punished. The discharge was proper and equitable. Relief is denied.

In the applicant’s issue 5, the Board determined this issue is without merit. The applicant states he was close to finishing his tour and had proven himself an honorable service member with two prior honorable enlistments. It is true the applicant’s prior service was honorable and was reflected in his previous Honorable discharges. But his final enlistment was not Honorable and was appropriately characterized as Other Than Honorable, due to his repeated and deliberate misconduct. The discharge was proper and equitable. Relief is denied.

In the applicant’s issue 6, the Board determined this issue is without merit. The applicant claims his Article 15 NJP was one isolated or minor incident in his 8-year career. It is true the applicant had one NJP, which was for a court-martial offense. However, he also had a civilian conviction for indecent exposure of his private parts to persons of the opposite sex in a trailer park. Additionally, he was counseled for driving on base after his base driving privileges had been revoked, a result of a DWI conviction. The discharge was proper and equitable. Relief is denied.

In the applicant’s issue 7, the Board determined this issue is without merit. The applicant claims the punishment he received was too harsh. The applicant committed court-martial offenses but instead received a non-punitive discharge for his repeated misconduct. The discharge was proper and equitable. Relief is denied.

In the applicant’s issue 8, the Board determined this issue is without merit. The applicant claims his demotion was improper because his rank was temporarily reinstated, then his command demoted him again, using double jeopardy, which resulted in his final discharge. The facts are, the applicant’s final misconduct of indecent exposure, following a DWI conviction, then driving on base after his base driving privileges had been revoked, are the reasons for his discharge. His behavior severely and negatively impacted his command and was detrimental to good order and discipline. The discharge was proper and equitable. Relief is denied.

In the applicant’s closing comments to his list of issues, he requests that his highest rank of Sargent (E-5) be reinstated. The NDRB does not have the authority to reinstate the rank of any ex-military member. The applicant will have to submit this request to the Board of Correction of Naval Records (BCNR) for relief. At this time, relief is denied.

 Pertinent Regulation/Law (at time of discharge)

 A. Paragraph 6210 MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16C, Change 4, effective 29 Jul 87 until 26 Jun 89.

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 86, unauthorized absence for more than 30 days].
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 Street SE Rm 309
                  Washington, D.C. 20374-5023     


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