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USMC | DRB | 2000_Marine | MD00-00228
Original file (MD00-00228.rtf) Auto-classification: Denied


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


ex-Pvt, USMC
Docket No. MD00-00228

Applicant’s Request
The application for discharge review, received 991201, 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 000928. 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 HONORABLE CONDITIONS (GENERAL)/Convenience of the Government, Review Action, Punitive discharge set aside (without administrative discharge board), authority: MARCORSEPMAN Par. 6203.4.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues (verbatim)
1. The charges ere dismissed in Special Court Martial and action number 04-92. Therefore I believe the discharge I received is improper.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Supplementary Action & Special Court-Martial Order Number 79-94 dtd 11 May 94
 Copy of DD Form 214 (2 copies)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
          Inactive: USMCR(J)                881230 - 890710  COG
Period of Service Under Review :
Date of Enlistment: 890710               Date of Discharge: 940531

 Length of Service (years, months, days):
         Active: 04 10 22 (Doesn't exclude confinement time)
          Inactive: None
Age at Entry: 17(Parental Consent)       Years Contracted: 4
Education Level: 12                        AFQT: 51

 Highest Rank: LCpl
Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.0 (8)                       Conduct: 3.5 (8)
Military Decorations: None

 Unit/Campaign/Service Awards: SSDR (w/1 Star), NDSM, SWASM (w/2 Stars), CAR, KLM
Days of Unauthorized Absence: None

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

UNDER HONORABLE CONDITIONS (GENERAL)/Convenience of the Government, Review Action, Punitive discharge set aside (without administrative discharge board), authority: MARCORSEPMAN Par. 6203.4.
Chronological Listing of Significant Service Events :

900504:  Counseled for deficiencies in performance and conduct [substandard performance in doing as told by Sqd leader, disrespect toward seniors]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
901002:  Counseled for deficiencies in performance and conduct [conduct unbecoming defacing government property by writing his name on wet cement by the battalion CP]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
910508:  Eligible but not recommended for promotion to LCpl for the May 91 Promotion Quarter because of poor compliance to rules and regulations, applicant defies authority, disrespectful to senior.
910712:  Counseled for deficiencies in performance and conduct [alcohol related incident - underage drinking/breach of peace on 12 May]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
910912:  Counseled for deficiencies in performance and conduct [financial irresponsibility by writing a check with insufficient funds]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
911122:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 95.
          Specification: resist apprehension by Interior Communicationsman 3 rd Class C H C_, USN.
          Charge II: violation of the UCMJ, Article 128 (2 Specs).
          Specification 1: unlawfully strike LCpl D W G_ on the head with his fist.
          Specification 2: assault Personnelman 3 rd Class L G_, USN, by striking Personnelman 3 rd Class G_ in the chest with his fist.
         Charge III: violation of the UCMJ, Article 134.
          Specification: drunk and disorderly which conduct was of a nature to bring discredit upon the armed forces.
          Finding: to Charge I and the specification thereunder - guilty.
         Charge II, Spec 1 - guilty, Spec 2 - not guilty.
          Charge III and specification thereunder - guilty.
          Sentence: Confinement for 30 days, forfeiture of $497.00 per month for 1 month, reduced to E-1.
         CA action 911202: Sentence approved and ordered executed.
911125:  NJP for violation of UCMJ, Article 91: at Brks 2704, Camp Hansen, Okinawa Japan, 1430, 91120, disrespectful to Corporal P_ by saying to him, "Let's go out back and take care of our problem".
         Award: Forfeiture of $422.00 per month for 2 months, restriction and extra duty for 30 days, reduction to E-2. Appeal denied 911203.
920114:  Counseled for deficiencies in performance and conduct [one NJP and one Summary Court Martial within a one month period which indicates a pattern of misconduct]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
920128:  To pre-trial confinement.

 920413:  Special Court-Martial. (920413 - 920414)
          Charge I: violation of the UCMJ, Article 81 (3 Specifications):
         Specification 1: on or about 24 Jan 92, conspire with Sgt T_ E. B_, USMC, and other unknown persons to commit an offense under the UCMJ, to wit: unlawfully strike LCpl C_ S. W_, USMC, and in order to effect the object of the conspiracy the said Pvt (Applicant) did unlawfully strike said LCpl W_ in the face with his closed fist and the said Sgt B_ did thereafter grab LCpl W_ by the head and slam him to the ground all done while LCpl W_ was trying to avoid a confrontation with the said Marines and was backing away from them.
          Specification 2: on or about 24 Jan 92, conspire with Sgt T_ E. B_, USMC, and other unknown persons to commit an offense under the UCMJ, to wit: unlawfully strike Sgt I_ A. W_, USMC, and in order to effect the object of the conspiracy the said Sgt B_ did unlawfully strike said Sgt W_ on the face with his closed first.
          Specification 3: on or about 24 Jan 92, conspire with Sgt T_ E. B_, USMC, to commit an offense under the UCMJ, to wit: unlawfully strike an unknown black male, and in order to effect eh object of the conspiracy the said Pvt (Applicant) did unlawfully strike the said unknown person repeatedly about the head and body with his fist while sitting on top of said person and, thereafter, Sgt B_, after Pvt (Applicant) was forcibly restrained, did unlawfully strike said unknown person while said person was lying on the floor.
         Charge II: violation of the UCMJ, Article 128 (4 Specifications).
         Specification 1: on or about 10 Jan 92, unlawfully strike Pvt A_ D_, USMC, on the face and head with a closed fist.
         Specification 2: on or about 24 Jan 92, unlawfully strike Sgt I_ A. W_, USMC, on the side of the head with a closed fist.
         Specification 3: on or about 24 Jan 92, unlawfullystrike LCpl C_ S. W_, USMC, on the face with a closed fist while said LCpl W_ had his back towards Pvt (Applicant).
         Specification 4: on or about 24 Jan 92, unlawfully strike an unknown black male on the head with his closed fist.
         Charge III: violation of the UCMJ, Article 134.
         Specification: on or about 1 May 1991, with intent to defraud, falsely pretend to have the authority to authorize calls to be made and charged to the U.S. Government, then knowing that the pretenses were false, and by means thereof, did wrongfully obtain from GTE Hawaiian Telephone, MCI telephone services, of a value of about $3.42, to wit: long distance telephone services to Orange, CA, while charging such services to the U.S. Government.
         Findings: to Charge I and specifications 1, 2, 3 thereunder - Not Guilty. To Charge II, specifications 1 and three - Not Guilty; to specifications 2 - Guilty.
To Charge III and specification thereunder - Guilty.
         Sentence: 90 days confinement and a bad conduct discharge.
         CA 920728: Sentence approved and ordered executed except for the BCD.
         
920414:  From confinement.

 920528:  To appellate leave.

940331:  NMCCMR: Findings and sentence set aside. The charges and specifications that were the subject of not guilty findings (i.e., Charge I and the three specifications thereunder and renumbered Specifications 1 and 3 of Charge II) are dismissed. A rehearing my be ordered by the same or a different convening authority with regard to Charge II and Specification 2 thereunder and Charge III and the specification thereunder (i.e., the charges and specifications to which the appellant entered pleas of guilty). Article 66(d), UCMJ, 10 U.S.C. § 866. If the convening authority to whom the case is referred determines that a rehearing is impracticable, he may dismiss the charges.

940511:  SSPCMO: Sentence adjudged on 14 Apr 92, and the findings, as promulgated on 28 July 1992, were set aside on 31 Mar 94. The charges are dismissed. All rights, privileges, and property of which the accused has been deprived by virtue of the findings of guilty and the sentence so set aside will be restored. The accused's Commanding Officer may choose to initiate administrative separation processing.

940531:  Discharge Under Honorable Conditions (General) by reason of Convenience of the Government, Review Action, Punitive discharge set aside.

PART III – RATIONALE FOR DECISION AND PERTINENT
REGULATION/LAW

Discussion

The applicant was discharged on 940531 Under Honorable Conditions (General) by reason of Convenience of the Government, Review Action, Punitive discharge set aside (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 issue 1, the applicant stated that “t he charges ere dismissed in Special Court Martial and action number 04-92. Therefore I believe the discharge I received is improper.” The applicant is correct in stating that the charges from his Special Court-Martial on 13 April 1992 were dismissed. However, the applicant’s Commanding Officer was allowed to initiate administrative processing on the applicant based on his service record. Due to the applicant’s previous counselings for deficiencies in performance and conduct, non-judicial punishment for disrespect, and Summary Court-Martial for resisting apprehension, assault, and drunk and disorderly, the applicant was processed out of the Marine Corps with a general (under honorable conditions). The applicant was very fortunate indeed to receive a general vice other than honorable discharge. Relief denied.

Pertinent Regulation/Law (at time of discharge)
A. Marine Corps Separation and Retirement Manual, ( MCO P1900.16D, effective 890627 until 950817), paragraph 6203, CONVENIENCE OF THE GOVERNMENT .

 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 128, assault.
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 view DoD Directive 1332.28 and other Decisional Documents by going online at “ afls14.jag.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:
                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                   Washington Navy Yard DC 20374-5023      



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