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USMC | DRB | 2000_Marine | MD00-01012
Original file (MD00-01012.rtf) Auto-classification: Denied


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

ex-SSgt, USMC
Docket No. MD00-01012

Applicant’s Request
The application for discharge review, received 000830, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a personal appearance hearing review in the Washington National Capital Region. The applicant designated the Veterans of Foreign Wars as the 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 hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010719. 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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.2.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

 1. I applied for a hardship discharge but was unfairly denied. I also applied for a compassionate reassignment but was unfairly told to "forget it".

2. The punishment I got at discharge was too harsh. It was much worse than most people receive for the same offense. It was too severe by today's standards.

Submitted by VFW:

3. Request applicant's entire record of service be reviewed for fairness and equity of his discharge. The record reflects only one incidents pertaining to a independent tour of recruiting duty. The pressures and strain to a family is severe. The applicant has sacrificed his family, marriage and career because of this duty. We argue the discharge was not in accordance with DoD Directive 1332.28E4.2 EQUITY .

E4.3.3.1 Quality of service, as evidenced by factors such as:

E4.3.3.1.1. Service history, including date of enlistment, period of enlistment, highest rank achieved , conduct o efficiency ratings (numerical or narrative);
Awards and decorations
Letters of commendation
Level of responsibility at which the applicant served;

Length of service during the service period which is the subject of the discharge review;
E4.3.3.2.2 FAMILY AND PERSONAL PROBLEMS . This includes matters in extenuation or mitigation of the reason for discharge that may have affected the applicant's ability to serve satisfactorily.

E4.3.3.2.3 ARBITRARY OR CAPRICIOUS ACTION . This includes actions by individuals in authority that constitute a clear abuse of such authority and that, although not amounting to prejudicial error, may have contributed to the decision to discharge or to the characterization of service.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Dept of VA, Chicago, IL ltr of Jun 26, 2000 (decision on compensation claim)
 M_ M. Z_, Ph.D. (Clinical Psychologist) ltr of Oct 25, 2000 to DVA concerning applicant
M_ M. Z_, Ph.D. (Clinical Psychologist) ltr of Oct 25, 2000 to DVA concerning applicant (Confidential) (6 pages)
Service Record related pages, including letters of appreciation and commendation, rebuttals to performance evals and relief for cause, (30 pages)
State of Michigan Personal Protection Order (9 pages)
Project Sentry (alcohol/drug assessment) dtd April 30, 1999

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              920214 - 970211  HON
                                             890408 - 920213  HON
                                             840529 - 890407  HON
         Inactive: USMCR(J)                830603 - 840528  COG

 Period of Service Under Review :
Date of Enlistment: 970212               Date of Discharge: 990528

 Length of Service (years, months, days):

         Active: 02 03 17
         Inactive: None

 Age at Entry: 31                          Years Contracted: 4

Education Level: 14                        AFQT: 34

 Highest Rank: SSgt

 Final Enlisted Performance Evaluation Averages : All enlisted performance reports were available to the Board for review.

 Military Decorations: None

 Unit/Campaign/Service Awards: GCM (3 stars), OSSR (2 Stars), SSDR (1 Star), NDSM, CAR, SWASM (2 Stars), KLM, MM(15),NUC (1 Star),COC (7), NMCAM (1 Star), SECNAV LOC, MUC (1 Star), LOA, MCRR, MSGR, Rifle Expert Badge

 Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.2.

 Chronological Listing of Significant Service Events :

970212:  Reenlisted for term of 4 years at Recruiting Station, Omaha, NE.

 970321:  Counseled for deficiencies in judgment by violated StaO5370.1 by allowing a command recruiter to transport an applicant in her personally owned vehicle. SSgt (Applicant) has been verbally counseled on this issue in the past by the Sergeant Major, Recruiter Instructor, and the Executive Officer. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

971205:  Non Punitive Letter of Caution issued.

980902:  Issued a Letter of Probation and Notification of Evaluation for potential for further service within the primary military occupational specialty (PMOS) of 8412 Career Recruiter.

9809xx:  Applicant's rebuttal to relief for recruiter malpractice and request for revocation of 8412 MOS. Applicant requested to be Honorably Discharged as an 8412. Reason based on health, personal, and financial.

980903:  Counseled for deficiencies in performance and conduct [poor judgment, questionable ethical standards and poor integrity. SNM was the subject of an "informal inquiry", which was conducted into the circumstances surrounding the alleged violation of Article 123 "forgery" of the UCMJ. Inquiry concerned alteration of medical records faxed to MEPS Lansing, MI, on 980814 concerning J_ K_, an applicant for enlistment into the United States Marine Corps. The original statement (not a faxed copy) from the medical office clearly is different from the fax that was faxed from your RSS to MEPS]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
981214:  Counseled for deficiencies in performance and conduct. Violation of Article 92, specifically violation of a written order by attempting to fraudulently and knowingly provided PFC E_ with referral credit for enlisting Poolee J_ M_ in violation of MCRC SOP Volume 1. You have been previously counseled prior to this written counseling statement by the RS Sergeant Major for similar offenses on 981203. The decision you made to provide false referral credit to PFC E_ shows a blatant disregard for Marine Corps Regulations and goes against both the letter of the order and the "spirit" of the order. You are currently on probation and one of the criteria for your evaluation is Leadership abilities. This action causes me to reevaluate your ethical and moral decision making ability as well as the standards you have set for yourself. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
990104:  Counseled for deficiencies in performance and conduct. Violation of articles 90 and 92 of the UCMJ, specifically; violation of a verbal order on 980804 from 1stLt P_ (RS Executive Officer) in regards to you making personal phone calls at government expense. During the months of Oct and Nov 98, you continued to make personal phone calls at government expense. Your personal phone usage continued, even after the RS Lansing Policy Ltr dated 981030 concerning Government Phone usage was published thus adding violation of Article 92. Violation of Article 92, improper usage of your government vehicle (domicile to duty) on 981224 by driving your Govt. Veh. To your home at 2200. This is a violation of DistOrder P4000.1, your probation ltr dtd 980902 and RS Policy ltr dtd 981030. You have shown "Blatant" disregard to any and all orders issued by competent authority and Commissioned Officers, as well as your Commanding Officer. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
990329:  NJP for violation of UCMJ, Article 92 (4 Specs): disobeyed a lawful order
 Spec I: in that SSgt (Applicant), on or about 24 Jul 98, willfully violated MCO P1100.72B by allowing the enlistment of a Poolee to MCRD knowing that the Poolee was permanently disqualified from enlistment due to his history of sleepwalking;
Spec II: in that SSgt (Applicant) on or about 7 Nov 98, violated DSTO P4000.1M, StaO 2060.1 and RS CO policy ltr of 30 Oct 98, by wrongfully using government phone for personal use.
Spec III: in that SSgt (Applicant) on or about 25 Nov 98, violated Volume 1 of the Recruiting SOP by attempting to provide a referral credit to a Marine that was not the source of this enlistment;
Spec IV: in that SSgt (Applicant) on or about 13 Dec 98, violated Volume I of the Recruiting SOP by attempting to provide a referral credit to a Marine that was not the source of this enlistment.
Violation of UCMJ, Article 107 (2 Specs): making a false official statement
Spec I: in that SSgt (Applicant), on or about 25 Nov 98, with the intent to deceive, submitted false referral credit information to the operations section for entry into the ARMS.
Spec II: on or about 13 Dec 98, SSgt (Applicant), submitted false referral credit information to the operations section for entry in the ARMS.
          Award: Forfeiture of $1036.00 per month for 2 months (total forfeiture $2072.00). Forfeiture of $836.00 pay per month for 2 months for 4 months, at which time unless sooner vacated will be remitted w/o further action (Total forfeiture suspended $1672.00). Not appealed.
990324:  CO, MCRS Lansing recommended applicant be relieved for cause due to recruiter malpractice and that his 8412 MOS as a career recruiter be voided.
990412:  Applicant notified of intended recommendation for discharge by reason of misconduct due to minor disciplinary infractions as evidenced by recent NJP held on 17 March 1999, for violation of articles 92 and 107 of the UCMJ and your four previous page 11 entries. The least favorable characterization of service may be under other than honorable conditions.
990412:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to make statement, the right to obtain copies of the documents used to support the basis for the separation.

990412:  Applicant's Statement: "This is my only plea to the notification of separation proceedings, and that is you allow yourself to view my entire record of service and find me worthy of an Honorable Discharge.

         I have endured a lot in my 15 years sir, but I have had a lot of either adverse or traumatic situations occur in my life as of late. I am under a lot of stress and I am burned out and tired of all the hardships that I carry.

         I am currently battling for the custody of my two beautiful children making me completely vulnerable to any attacks on my character, integrity, etc. To be specific sir, my children, is all I think about saving these days.

         I have just enough presence of mind to realize that before I get discharged to ask that you recommend that I leave under Honorable Conditions. I can go back to school and make a better life for my son and daughter with the benefits that an Honorable Discharge would give.

         All the accomplishments I have achieved sir and through hard work, innovation, dedication, and espirit de corps I gave to the mission my all sir.

         This time I need your help. Respectfully Submitted. Signed by Applicant."
990416:  Commanding officer recommended discharge with a general (under honorable conditions) by reason of misconduct due to minor disciplinary infractions, specifically his numerous violations of written regulations that could have been easily punishable under Article 15 of the UCMJ, and the recent NJP held on 17 March 1999. Commanding officer’s comments (verbatim): "Staff Sergeant (Applicant)'s total lack of judgment, integrity and overall professionalism as a career recruiter and a Staff Sergeant in the Marine Corps is unsatisfactory. He has shown a complete disregard for written Marine Corps policies as well as obeying orders given by a commissioned officer. His military bearing and actions regarding unsound recruiting practices are not only inconsistent with good order and discipline but also have the potential to project a negative image of the Marine corps within the community if left unchecked."

990430:  SJA review determined the case sufficient in law and fact.

990430:  GCMCA [CG, MCRD/WRR San Diego] directed the applicant's discharge with a General (Under Honorable Conditions) by reason of misconduct due to minor disciplinary infractions.

990527:  CG MCRD WRR San Diego, CA directed applicant's relief for cause and void PMOS 8412 and change AMOS 2537 to PMOS. Retain onboard for admin separation.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 990528 with a General (Under Honorable Conditions) by reason of 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 proper and equitable (D and E).

In response to the applicant’s issue 1, the Board found that the applicant’s issue is a non-decisional issue. The Board did not find any evidence of a formal request for humanitarian discharge or a hardship discharge in the applicant’s service record. This is not a decisional issue for the Board.

 The applicant states in issue 2 that “t he punishment I got at discharge was too harsh. It was much worse than most people receive for the same offense. It was too severe by today's standards.” The Board found that the applicant was counseled on 4 separate occasions, received a non-punitive Letter of Caution, a Letter of Probation and was awarded CO’s NJP for 4 specifications of disobeying a lawful order and 2 specifications of making a false official statement. The Board does not believe that the applicant’s discharge was too harsh based on the serious nature of the offenses committed. The Board found that the applicant’s discharge characterization of general (under honorable conditions) was equitable, and will therefore not grant relief based on this issue.

 In response to the applicant’s issue 3, the Board thoroughly reviewed the applicant’s discharge for “fairness and equity.” The Board found that the applicant’s commanding officer and the GCMCA took into account the applicant’s mitigating circumstances of family and personal problems when they recommended and directed the applicant’s discharge be characterized general (under honorable conditions). The applicant was advised on 4 separate occasions of his deficiencies in performance and warned that further misconduct could result in his separation from the Marine Corps. The applicant failed to heed these warnings, at which time he was awarded CO’s NJP and processed for administrative separation. The applicant’s mitigating circumstances are not a reason to upgrade the applicant’s discharge to honorable conditions. Additionally, the Board found nothing in the records, nor did the applicant provide anything to indicate or to show that there exists an error of fact, law, procedure, or discretion associated with his discharge at the time of its issuance, and that his rights were prejudiced thereby. Furthermore, there has been no change in policy by the Navy, or higher authority, made expressly retroactive to the type of discharge received by the applicant. No relief will be granted based on this issue.

There is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the Service. However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (D). Those factors include, but are not limited to, the following: evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct. At this time, the applicant has not provided any documentation of good character and conduct. Therefore no relief will be granted. 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.

 Pertinent Regulation/Law (at time of discharge)

 A. Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 Aug 95until Present.

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 92, disobeying a lawful order, Article 107, false official statement.
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 “ afls10.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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