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USMC | DRB | 2001_Marine | MD01-00407
Original file (MD01-00407.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD01-00407

Applicant’s Request
The application for discharge review, received 010212, 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 010822. 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 OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT-MARTIAL, authority: MARCORSEPMAN Par. 6419.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. The intent of this letter is to request reenlistment to Active Duty in the United States Marine Corps, where my qualities and abilities will be a great value to the Marine Corps.
I first joined the Marine Corps back in January 1995 where I served as a unit diary clerk. As an Unit Diary clerk I earned a Navy and Marine Corps Achievement Medal, Certificate of Commendation, National Defense Service Medal, Sea service deployment ribbon, meritorious mast, Marine Corps Good Conduct Medal, Certificate of achievement. I did a lateral move in January 1999 where I successfully completed cryogenics equipment course in June of 1999. During my course of study I went through the loss of my father along with marital problems.
My marital problems started with when my father passed away in February 1999. After laying my father to rest and trying to help my family mourns the sudden death of my father. I tried to send my wife back to Cherry Point on a plane. Where she insisted that I go with her even though it was her idea that her and my two step children go back to Cherry Point. So the kids did not miss anymore school with that I called my two sisters to try to talk to her on why it was impractical for me to leave when there was so much other things that I needed to do. Through all of the commotion she called the police on my sisters and told the police that they were bothering her. Once the situation was defused I put my wife and my two stepchildren on the plane thinking now that I could help my mother with all of the details and bill paying since my mother never worked during the marriage to my father. Before I could even get back home my mom called my sister on her cell phone and told me that my wife had gotten off the plane and rented herself a motel room. So once I got back home I borrowed my mom's car and drove to the motel where I gave my wife money to travel on. Then when I left the motel my wife called the police and told them that I was going to kill someone. With that being told to the police they stopped me searched my car and then released me. The next day my wife got on the plane where she insisted on calling my old command MACG-28 where the executive officer had called my house and told my mom that I was ordered to get on the next available flight back to Cherry Point. During this time my sister had taken me to Scott Air Force base where I had surgery to take out my appendixes. When I was released from the hospital my mom told me that Sergeant Major C_ had called and I was to call him as soon as possible. When I called SgtMaj C_ he had informed me that from his understanding that I was good to stay at home until my leave was up. Then my wife called the Chaplain, SgtMaj C_, the Executive Officer, and the Commanding Officer on a daily basis. Where with doing that put a tremendous stress on all those marines along with myself I separated from my wife during the time I was in school. Half way through school my wife was served with divorce papers with that the phone calls became more frequent and the time taken out from course of study to talk to the SgtMaj had became more frequent. While I was living m the barracks during my separation I had to move six times since my wife would come to my barracks room to try to fight with this the SgtMaj just reassured me that to call the command was the right thing to do. My wife would intentionally go to places I was at and try to argue with me, Once I completed school my wife and me had decided that we would try to work things out we met with the chaplain and even took the marriage class together. Everything seemed to be working themselves out until I found out that my wife was having an affair with another marine. In June of 1999 when I had found out that my wife was having an affair I got pulled over for a DUI after I had gotten all of my stuff from the off base quarters that we were staying at and was arrested. With this I separated from my wife and since my intentions were to divorce my wife I got a room in the barracks where I stayed until my wife started doing the same thing again coming to my barracks room and trying to start an argument. So once again I called the command and like always as soon as they came she had already had left. This had gone on for a couple of days when I asked one of my friends that lived off base if I could stay with him. This arrangement worked out for the both of us except the phone calls to the SgtMaj, XO, CO. After having a discussion with the SgtMaj about how I was to support my dependents even though we were separated I had showed him that I was supporting my dependents through money orders. The Commanding Officer ordered me not to have any contact with my wife. A hurricane was getting ready to hit Cherry Point and I called my wife and dropped off some money for her just in case she needed to evacuate the trailer park that she was living in. With this she called the police and the command after I had left her house. The police held me for she said that I had assaulted. So after spending twenty-six hours in a holding cell they had released me but I was still UA from my post. I fully understand that what I did was wrong and took my NJP for Unauthorized absence, and disobeying a direct order from a Superior officer. There I was reduced from a sergeant to a corporal and fined $500.00. After learning my lesson my wife did not quit. So to get way for awhile to let things simmer down I was granted leave to go back home where I stayed a couple of days when the Commanding Officer revoked my leave and told me to get back to Cherry Point in the most expedient manner. When returning back to Cherry Point I was sent To the BRIG for violating a direct order. I served forty-six days in the BRIG when I was asked if I would sign a voluntary discharge Nile of a court martial. I signed the paper so that could ease the burden of my wife from the CO, XO, SgtMaj, and the Marine Corps.
After being discharged I was granted a divorce from my wife and still wake up every morning at 0530 for physical training. Even though I understand that I made some bad choices before while serving in the Marine Corps I have learned from my mistakes and would like to regain the honor of my name back. Since my father had served honorably in the armed services. Not only will this just be a personal request but I would like to lead other marines from making the same bad choices that I have made and would like to continue to fight and win battles that makes serving in the United States Marine Corps such an Honor.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of Applicant's divorce decree dtd 4/27/00

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              950123 - 981212  HON
         Inactive: USMCR(J)                940725 - 950122  COG

 Period of Service Under Review :
Date of Enlistment: 981213               Date of Discharge: 991025

 Length of Service (years, months, days):

         Active: 00 10 13
         Inactive: None

 Age at Entry: 23                          Years Contracted: 4

Education Level: 12                        AFQT: 53

 Highest Rank: Sgt

 Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency : 3.5 (2)                                         Conduct : 3.4 (2)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, CoC, SSDR (w/1 Star), NMCAM, MM, GCM, CoA, Rifle Marksmanship Badge

Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT-MARTIAL, authority: MARCORSEPMAN Par. 6419.

 Chronological Listing of Significant Service Events :

981213:  Reenlisted for term of 4 years at MTACS28 macg28 2DMAW, MCAS Cherry Point, NC.
990412:  Counseled for deficiencies in performance and conduct [failed to obey order or regulations given by SgtMaj C_ and CySgt S_ to not initiate any efforts to contact estranged wife or children]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990604:  Counseled for deficiencies in performance and conduct [UA from Cryogenic School House on or about 1545 on 990428 did not report to duty until 0700 on 990429]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990819:  Military Protective Order issued to Applicant to remain 1,000 feet from T_ L. K_, spouse and violation of the order may result in administrative or disciplinary action, including possibly trial by court-martial. Applicant acknowledged by his signature on the order.
990823:  Counseled for deficiencies in performance and conduct [on or about 990817, you were arrested for drunk and disorderly charges, also you inflicted wounds upon yourself]. Additionally, you are cautioned on your frequent misconduct in the civilian community. Your civilian record includes the following pending offenses: driving while impaired, assault on a female and resisting a Public Officer. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990902:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0701, 990817 to 0715, 990818; violation of UCMJ, Article 107: made false official statement to CWO3 M_ on 990823.
 Awarded reduction to E-4, forfeiture of $500.00 per month for 2 months (suspended for 1 month). Not appealed.
990909:  Placed in pretrial confinement.

 990910:  72-hour Memo for continued pretrial confinement issued. Applicant detained due to allegations of committing violation of UCMJ, Article 92: failure to obey order or regulation (violating two military Protective Orders). Additionally, applicant is also pending charges with civilian authorities for assault and communicating a threat. Nature and circumstances surrounding the allegations are: Cpl (Applicant)'s spouse has called on numerous occasions complaining that member was going to kill her and has physically assaulted her. A Military Protective Order was issued on 990819. Member disobeyed such order. A subsequent Military Protective Order was issued on 990827. Member disobeyed such order as well. Sheriff T_ of Onslow County Sheriff's Dept was a witness to the first violation. ……………………..Applicant considered a threat to wife and the civilian community………….. Pre-trial confinement is necessary to ensure member does not continue to terrorize and intimidate spouse and daughters, or perpetrate offenses, which pose a serious threat to safety of Mrs. K_ (spouse) and the community or to the effectiveness, morale, discipline, readiness, or safety of the command.

990920:  Charge Sheet issued for violation of UCMJ 90: having received a lawful command from LtCol. W.A. H_, USMC, his superior commissioned officer, than known by the said Corporal (Application) to be his superior commissioned officer, to remain 1,000 feet from his wife, T_ L. K_, at all times, or words to that effect, did, in or around H_, NC, on or about 10 Aug 99 willfully disobey the same.

990927:  Applicant, having consulted with counsel certified under UCMJ Art 27b, requested discharge for the good of the service to escape trial by court- martial. In the request the applicant noted that his counsel had fully explained the elements of the offenses for which he was charged and that he understood the elements of the offenses. He further certified a complete understanding of the negative consequences of his actions and that characterization of service would be under other honorable conditions. The applicant admitted guilt to the following violations of the UCMJ: Article 90: on or about 30 Aug 1992 willfully disobey a valid military protection order issued by commanding officer.

991014:  SJA review determined the case sufficient in law and fact.

991014:  GCMCA [CG, 2d MAW, MC FORCES, LANT] directed discharge under other than honorable conditions in lieu of trail by court-martial.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 991025 under other than honorable conditions in lieu of trial by court-martial (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).

The marital problems experienced by the applicant during his second enlistment are unfortunate. However, such problems of a personal nature do not mitigate the applicant’s disregard for lawful orders issued by his chain of command. When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as honorable. Under other than honorable conditions is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. T he applicant’s service was marred by award of nonjudicial punishment (NJP) on one occasion, adverse counseling entries on other occasions, and by offenses that would have resulted in a trial by court martial. The applicant, having consulted with counsel certified under UCMJ Art. 27b, requested discharge for the good of the service to escape trial by court- martial. In the request the applicant noted that his counsel had fully explained the elements of the offenses for which he was charged and that he understood the elements of the offenses. He further certified a complete understanding of the negative consequences of his actions and that characterization of service would be under other than honorable conditions.

The applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the applicant’s enlistment. Additionally, 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 civilian life, subsequent to leaving the service. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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. Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge. Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct. The applicant did not provide sufficient documentation to warrant an upgrade to his discharge. He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge. The applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Legal representation at a personal appearance hearing is highly recommended but not required. Relief denied.

 Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reentry into the naval service or any other branch of the Armed Forces. The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy or Marine Corps. Reenlistment policy of the naval service is promulgated by the Commander, Navy Personnel, Pers 814, 5720 Integrity Drive, Millington, TN 38055, and the Commandant, United States Marine Corps, Code MMPE-5, Washington, DC 20380-3001. Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment. A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter. Relief is therefore denied.

Pertinent Regulation/Law (at time of discharge)

 A. Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective
18 Aug 95 until 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 107 - making false official statement and Article 92 - failure to obey order or regulation.
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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