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USMC | DRB | 2000_Marine | MD00-00788
Original file (MD00-00788.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD00-00788

Applicant’s Request

The application for discharge review, received 000605, requested that the characterization of service on the discharge be changed to Honorable. The applicant requested a personal appearance discharge review hearing before the board in the Washington National Capital Region. The applicant listed a private counsel as his representative on the DD Form 293.

Decision

A personal appearance discharge review hearing was conducted in Washington, D.C. on 010419. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned the characterization and basis of the applicant’s discharge was improper and inequitable. The Board’s vote was unanimous that the character and basis of the discharge shall change to: HONORABLE/SECRETARIAL AUTHORITY, authority: MARCORSEPMAN Par. 6214.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues

1. I was coerced into accepting an OTH discharge in June 1985 under threat of court-martial.

2. I was served disciplinary action without proper counseling as required by MCO P1900.16C, the Marine Corps Separation and Retirement Manual.

3. I was not afforded the opportunity to counsel before the process to serve me with Article 15 punishment in March 1985 was initiated.

In 1985, while serving with MAG-42, 4 th MAW NAS Alameda, California, I was under the command of Captain N. R. C_. During my tour at Alameda, I served on the base security detail as a volunteer, as law enforcement work was my eventual career goal. Captain C_ did not feel I should be spending my off-duty time with a Navy unit, and made it clear that he felt that such activities would have a negative impact upon my primary duties as an SRB clerk. When I persisted in my training with the base security detail, Captain C_ counseled me that I was not performing my clerk duties satisfactorily, though he would not provide any specifics. He also told me I should "shut up and take my medicine" and not make a statement. When I signed the counseling statement, I noticed that Captain C_ had made an entry in my Page 11 regarding clothing items without my knowledge or signature.
Following the counseling, Captain C_ informed me I would not be recommended for promotion due to my previously documented "poor performance". It became increasingly clear over the next few months that I would not be able to recover in Captain C_'s eyes and that his goal was to drum me out of the service. By March of 1985, he was hard at work at this goal. Whenever I had questions or asked further direction on any subject, he would day I was intentionally being difficult or even insubordinate. After one such incident when I went to him for help, he informed me he was taking action to reduce me in grade to PFC for poor performance. I decided to wait a few days to see if he would cool off, but he appeared to be serious about pressing this issue, so I asked to talk to the CO. Captain C_ told me that I had better not or he would make it harder on me, and said that if I didn't make a fuss, he would "suspend" the reduction. I was never advised of my rights, offered counsel, and I never saw nor signed any Article 15 paperwork on this action, though I was shown record entries that I was on suspended grade reduction to Lance Corporal.
 By the end of May 1985, the writing was on the wall that my life was to be a living hell as long as I was under his command. Captain C_ non-recommended me for promotion based upon that suspended reduction action, then a few days later the axes started falling on my head. When I reported late to duty at a reserve unit due to car trouble, Captain C_ told me that he was going to court-martial me if I did not accept a discharge right then and there. He busted me in rank to PFC, and told me he was processing my discharge paperwork. Realizing I could never recover my Marine career under him, I resigned myself to accepting the discharge in early June 1985. It took over a month to actually process the discharge, and I assumed that the Captain was going back to do the paperwork he never did properly in order to cover his tracks. I've since petitioned for a copy of my records, and found that very little of the actions Captain C_ took against me are in record (in any form) and there is no evidence that he even tried to provide me with due process, counsel, or read me my rights for the March 1985 punishment.
If you read my records, my performance record over my first enlistment (before being assigned under Captain C_) was solid, and I was even recommended for meritorious promotion during this time. It is clear from my records that the "negative" portion of my career had a very short lifespan: from my first performance counseling in November of 1984 until my discharge process was initiated in June of 1985. In just seven months, I went from being a solid Marine to being dishonorably discharged. This is a direct result of Captain C_'s prejudicial views on my off-duty training with the Navy. He knew I was trying to prepare myself for life after the Corps, and took it as a personal slap that I would want to do anything else with my life. Once he decided to teach me a lesson, the machinery he brought to bear was more than a 24-year-old enlisted Marine could defend against.
Looking back with eyes 15 years older, I realize there is more I could have done to avoid harm's way while serving under Captain C_, but this does not justify the daily harassment I received nor the short-circuited punishment process I underwent.
It is difficult to express in words how the nature of this discharge action has derailed my life, my goals, and my opportunities over the last 15 years. Though I had a stellar performance record and solid recommendations from the NAS Alameda Base Security Detail, I could not secure employment as a law enforcement officer due to the nature of my discharge. I also have been repeatedly turned away from every government employment avenue I have pursued due to this blemish on my record. I have spent the last 15 years primarily in self-employment, first as a small business owner and now as an over-the-road truck driver. I have led a solid if unspectacular life since being discharged, and have been blessed with a wonderful family and a beautiful daughter that deserves better than the life I have been able to provide for her. It is my dream to be able to live at home with my family in a job that doesn't keep me gone for 3 weeks or more of every month. It is my deepest hope that you will see the injustice of this lifetime sentence, and afford me the opportunity to live out my life with my head held high, as an honorably discharged Marine.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              800130 - 821022  HON
         Inactive: None

 Period of Service Under Review :
Date of Enlistment: 821023               Date of Discharge: 850714

 Length of Service (years, months, days):

         Active: 02 08 22
         Inactive: None

 Age at Entry: 21                          Years Contracted: 4

 Education Level: 12                        AFQT: 52

 Highest Rank: Cpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (12)             Conduct: 4.2 (12)

 Military Decorations: None

 Unit/Campaign/Service Awards: GCM, SSDR, MM

 Days of Unauthorized Absence: 2

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct-Minor disciplinary infractions (admin discharge board required but waived), authority: MARCORSEPMAN Par. 6210.2.

 Chronological Listing of Significant Service Events :

821023:  Applicant reenlisted for 4 years.

830525:  NJP [Extracted from unit diary].
 Awarded forfeiture of $185.00 per month for 1 month. No further information found in service record or unit diary.
84113:   Counseled for failure to perform assigned duties as the SRB Clerk in a proficient manner. Advised that failure to take corrective action could result in NJP or Administrative Discharge under Other Than Honorable conditions.
850320:  NJP [Extracted from unit diary].
 Awarded extra duties for 15 days, reduction to LCpl. Reduction suspended for 6 months. No further information found in service record or unit diary.
850606:  Vacated suspended reduction to LCpl.

850607:  NJP [Extracted from unit diary].
 Awarded extra duties for 45 days. No further information found in service record or unit diary.
850607:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.
860610:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

850611:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions. The factual basis for this recommendation was minor disciplinary infractions as evidenced by nonjudicial punishments imposed on 26 May 1983, 22 March 1985 and 7 June 1985.

850621:  SJA review determined the case sufficient in law and fact.

850624:  GCMCA [Commanding General, 4 th Marine Aircraft Wing, FMF] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.

850630:  Applicant to unauthorized absence 0601, 30Jun85.

850702:  Applicant from unauthorized absence 0630, 2Jul85 (2 days).
 870629:  NDRB documentary record review Docket Number MD86-02470 conducted. Determination: discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 850714 under Other Than Honorable conditions for misconduct due to Minor disciplinary infractions (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 improper and inequitable (D and E). The Board was able to determine that the characterization of the applicant’s discharge was inequitable because the nature of the minor disciplinary offenses did not warrant an Other Than Honorable discharge and should at best have resulted in verbal or written counseling. Additionally, his Pro/Con marks were sufficiently high enough (4.3/4.2) to warrant an Honorable discharge and the counseling record does not appropriately identify any performance deficiencies and required corrective actions. Without proper counseling, the applicant should not have been separated for minor disciplinary infractions, which renders his discharge from the Marine Corps improper. The Board determined that relief is warranted and the characterization and reason for discharge shall change to Honorable/ Secretarial Authority.

 Pertinent Regulation/Law (at time of discharge)

 A. Paragraph 6210 MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16C), Change 2, effective 15 Apr 84 until 28 Jul 87.

 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 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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