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USMC | DRB | 2000_Marine | MD00-00833
Original file (MD00-00833.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD00-00833

Applicant’s Request
The application for discharge review, received 000621, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to Convenience of the Government. The applicant requested a personal appearance hearing before a Traveling Panel. The applicant did not designate a representative on the DD Form 293. Since the Naval Discharge Review Board does not travel outside the Washington, D.C. area to conduct personal appearance hearings, the Board did a documentary (record) discharge review, whereby maintaining applicant's eligibility for a personal appearance hearing at a later date.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010502. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned an inpropriety in the characterization of the applicant’s service. The Board’s vote was unanimous that the character and basis of the discharge shall change. The discharge shall change to: UNDER HONORABLE CONDITIONS (GENERAL)/ Misconduct – Minor disciplinary infractions (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.2.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 Applicant listed mistakes on his DD Form 214.

Applicant's statement:

In November 1990 I had a hearing at Camp Hansen, Okinawa while I was stationed at Camp Schwab, Okinawa for the purpose of receiving an administrative discharge from the USMC. I was to be discharged at Camp Lejuene, NC. I received order to Camp LeJuene and upon arrival there on January 4, 1991 I was assigned to Camp 15 and ordered to Saudi Arabia from January 28, 1991 until April 15, 1991. In Feb 91 I was assigned to 1 st LAI in Saudi. In early April 1991, I transferred to Camp Pendleton where I received separation orders from 1 st LAI. I was discharged April 23, 1991.

My problems occurred on Okinawa with a physical confrontation with another Marine which was to have resulted in an administrative discharge. Since the USMC sent me to Saudi Arabia instead of discharging me, I believed that all was forgiven and I would complete my contract. When I returned from Saudi, I was handed separation papers instead. I was discharged April 23, 1991.

It appears that some other file was used in adjudicating my case. My service was honorable and I request that my discharge indicate honorable.

My belongings were destroyed by fire after my separation from service. When I received this replacement document it had the incorrect entries.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
 Applicant's Record of Military Processing - Armed Forces of the United States (DD Form 1966) (6 pages)
Applicant's Allotment designation (2 copies)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                870317 - 870510  COG

 Period of Service Under Review :
Date of Enlistment: 870511               Date of Discharge: 931112

 Length of Service (years, months, days):

         Active: 06 06 02 (Doesn't exclude lost and confinement time)
         Inactive: None

 Age at Entry: 21                          Years Contracted: 4

Education Level: 12                        AFQT: 39

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

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

 Military Decorations: None

 Unit/Campaign/Service Awards: MUC, MM, SSDR, NDSM

Days of Unauthorized Absence: 6

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

UNDER OTHER THAN HONORABLE CONDITIONS/Fraudulent entry into the Marine Corps (administrative discharge board not required), authority: MARCORSEPMAN Par. 6204.3.

 Chronological Listing of Significant Service Events :

880125:  NJP for violation of UCMJ, Article 134: on or about 0228, 871230, through negligence, discharge a service rifle at 2dLAVBn Armory.
 Awarded forfeiture of $376.00 per month for 1 month, 30 days correctional custody. Not appealed.
880203:  Counseled for deficiencies in performance and conduct [frequent involvement with military authority]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

880412:  Counseled for deficiencies in performance and conduct (dereliction of duty and uttering worthless checks). Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

880710:  Applicant eligible but not recommended for promotion to LCpl for Jul 88 because of recent NJP, lacks maturity, and fails to accept responsibility.
890921:  Unauthorized absence since 0700 from 2ndLAIBn 2ndMARDIV FMF Camp Lejuene.
890927:  Surrendered at 1900 at 2ndLAIBn 2ndMARDIV FMF Camp Lejuene. (6 days)
891102:  NJP for violation of UCMJ, Article 86: unauthorized absence (0700, 890921 to 1900, 890927).
         Award: Forfeiture of $100 per month for 2 months, restriction and extra duty for 45 days (suspended for 6 months), reduction to E-2. Not appealed.
900730:  NJP for violation of UCMJ, Article 134: on or about 900424 on board Okinawa, Japan did make and utter three checks to Army and Air Force Exchange Service of Okinawa in total amount of $148 and did dishonorably failed to maintain sufficient funds in his checking account to cover them in full upon presentment.
         Award: Forfeiture of $300 per month for 2 months (suspended for 3 months), restriction for 30 days, reduction to E-1 (suspended for 3 months). Not appealed.

901009:  CO, 3d Light Armored Infantry Battalion notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.
901011:  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.

901016:  CO, 3d Light Armored Infantry Battalion recommended discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions in accordance with the provisions of paragraph 6210.1 MARCORPSMAN. The factual basis for this recommendation was member's failure to conform to the standards of the Marine Corps. He has received three NJP's. He has been counseled concerning his deficiencies as evidenced by his service record. His response has been further violations of the UCMJ. By his actions and inability to respond to counseling, he has demonstrated that he has no potential for further honorable service.

901209:  Transferred to CG 2 nd MARDIV, Camp Lejuene, NC.

901218:  Stop Loss ALMAR 309/90 released. ALMAR identifies Marines holding the primary enlisted MOS of 0313 for involuntary retention. Paragraph 4 indicates exceptions to this retention including Marines being involuntarily administratively separated.

910112:  Joined for duty with H&S Co Rear.

910205:  TAD with 1MEF in support of Operation Desert Storm.

910306:  From TAD

910423:  Discharge proficiency and conduct marks given

910423:  Unauthorized absence since 1300 at 1 ST LAIBN, 1 ST MARDIV, FMF, Camp Pendleton, CA.

910516:  ECC date listed on BIR/BTR – 57 days of leave accurred, listed on LES

910627:  Declared deserter this date as of 1300, 910423 and dropped from the rolls by 1 st LAIBN, 1 st MARDIV, FMF, Camp Pendleton.

921106:  Report of Return of Absentee: Apprehended by civil authorities (Huntington Police Dept) at 2340, 921105 and returned to military control (Sub Unit 1, HqBn, 1 st MARDIV, MCB, Camp Pendleton CA) at 1400, 921106.

921106:  Confinement Order: Detained due to "Flight Risk: for violation of UCMJ, Article 86 (910323 - 921106 and 890921 - 890926).

921106:  Medical Eval: examined at 1530, found fit for confinement.

921106:  In confinement.

921117:  Report of Desertion. Time of absence 921117 at 1200 from Sub Unit 1, HqBn, 1 st MARDIV, MCB, Camp Pendleton, CA.

921118:  DD Form 553, Deserter Wanted by Armed Forces, issued.

931110:  Co, Sub Unit 1, HqBn, 1 st MARDIV, MCB, Camp Pendleton, CA advised SJA that applicant was separated on 12 Nov 1992 with a JKF1 code (general under other than Honorable conditions) and that his unit (2 nd LAI) at the time went on a deployment to Saudi Arabia and as a result the applicant is still in the system with three difference codes, a deserter status code W96 Ruc 54980, and EAS code of CofG1 (involuntarily held beyond his ECC of 910522 and a separations code of JFK1 (Other Than Honorable). Command further advises that the command will be joining the applicant back to our rolls from desertion and on the same unit diary will drop him the Marine Corps with a JFK1 and remove the W96 and the EAS CofG1. This unit is also sending a 616 form to remove member from the status of being a deserter

931110:  Applicant apprehended and was returned to military control at 1015, and returned to unit.

931112:  Applicant's DD Form 214 reflects discharge on 931112 with an Under Other Than Honorable Conditions by reason of Fraudulent entry into the Marine Corps (admin discharge board not required) and separation authority as MARCORSEPMAN par 6204.3.

970319:  MMSB-12 Route Sheet: Requesting verification of SDN Code and date of discharge ICO applicant stating: applicant discharged 17 Nov 92 JKF1 . Member's unit deployed to Saudi Arabia and as a result, member was in system as discharged and as a deserter. His unit was to correct the error by joining member back to rolls from desertion on same diary, enter a drop entry with SDN code JKF1 . Unit diary research shows member was joined back from desertion 12 Nov 93, but was dropped SDN JDA1 UOTHC effective 12 Nov 92. A copy of the diary entry is filed in case.

970422:  MMSR-3 comment on MMDN-12 Route Sheet of 19 Mar 97: Letter in applicant's record indicates he was discharged on 17 Nov 92 with a separation code of JKF1, he went UA prior to the discharge taking effect. Since a later unit diary entry indicates he was joined from desertion and dropped on 12 Nov 93 with a separation code of JDA1, this is the information that must be used. Therefore, applicant was discharged on 12 Nov 93 with a separation code of JDA1 (fraud entry) and OTH characterization of service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 931112 under other than honorable conditions by reason defective enlistment and induction due to a fraudulent entry (A). The Board presumed regularity in the conduct of governmental affairs (B). 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 and grants partial relief (C and D).

The Board found that the applicant should not have been discharged for fraudulent entry in to the service. The Board could find nothing in his record to substantiate this discharge. Relief granted

In 1990 the applicant was being administratively processed for discharge due to his misconduct, minor disciplinary infractions. However, it appears that his discharge process was stopped, erroneously, in response to ALMAR 309/90 and he was transferred to Camp Lejuene, NC for further assignment in support of Desert Storm. His unit should have continued with the separation process and not retained him on active duty. The applicant states that he believed that all was forgiven by this action, and the Board understands how he could get this impression.

According to his statement, the applicant believes that he was discharged in April upon his return from Desert Storm. To substantiate this allegation, the Board found that he was given discharge marks on 910423, which is the date he believes he was discharged. However, there is no DD214 in his records that substantiate this and the applicant could not provide his copy of the DD 214.

Based on numerous errors and inconsistencies in the applicant’s record, and the applicant’s statement, the Board grants partial relief.

The applicant is encouraged to submit a request to the Board of Corrections for Naval Review for corrections to his discharge date.

 The following is provided for the applicant’s edification. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (E). The applicant must be aware that 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 the civilian life subsequent to leaving the service. Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, may be considered by the NDRB. The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at personal appearance hearing is highly recommended.


Pertinent Regulation/Law (at time, of discharge)

 A. Marine Corps Separation and Retirement Manual, ( MCO P1900.16D), effective 890627 until 950817, paragraph 6204, DEFECTIVE ENLISTMENT AND INDUCTION.

 B. 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.

C. 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.

D. 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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