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USMC | DRB | 2001_Marine | MD01-00766
Original file (MD01-00766.rtf) Auto-classification: Denied


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


ex-PFC, USMC
Docket No. MD01-00766

Applicant’s Request
The application for discharge review, received 010514, 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 and change of RE Code to RE1. The applicant requested a personal appearance hearing discharge review before a traveling panel closest to Las Vegas, Nevada. The applicant did not list any representative on the DD Form 293. In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel, all hearing are held in the Washington, DC Area. The Naval Discharge Review Board (NDRB) also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 011218. 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 and narrative reason of the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Minor disciplinary infractions (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.2.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues
1. The following issues are reasons I believe my discharge should be upgraded to Honorable. I am also requesting that my re-enlistment code be changed as well as to coincide with the discharge upgrade. If you should disagree, please explain your reasons in detail why you disagree. The presumption of regularity that might permit you to assume that the service acted correctly in characterizing my service as less than Honorable does not apply to my case because of the evidence I am submitting.
The average conduct and efficiency rating/behavior and proficiency marks I received during my tour of service were relatively good. This is documented in my service book, with the exception of times when I received disciplinary action. My SRB will also show that I had combat service. At the time of my separation from the military I was within six months of finishing my tour of service and that it was unfair to give me a bad separation.
Since my discharge, I have been a good citizen. My service record will also indicate, as well as my DD-214, that all of my offenses were categorized as minor and isolated. In my SRB, you will note that my last two Article 15's occurred within two weeks of one another. It will also show that I received the maximum punishment for each. This will ultimately lead to my not receiving any pay during the last months leading up to my discharge.
During my second deployment to Okinawa, I learned that my wife was still married to another gentlemen in the Philippines. Unfortunately, the documents concerning this matter are not available. My medical records however, will show that during the later part of this same deployment, I was seen twice due to suspicions concerning suicide. In both cases, the suspicions were never justified.
In comparison with today's standards, the punishment I received was too severe. As I have stated before, my last two Article 15's were far more severe that the three I received early in my service. This has been well documented in my service book. Unfortunately, I cannot prove how severe it was. The pay records I've requested have either been lost or destroyed as evident by the enclosed documents. This was merely a small portion of the evidence I am presenting, the remaining evidence being presented shows the actual judgement from both Article 15's.
I tried to serve and wanted to, but just couldn't or wasn't able too. This was due largely to a few select individuals in my unit. I do not deny what I did any way; my record will show that one certain individual requested both my last two Article 15's.
Thank you for taking the time to review all the documents I am submitting with my petition. If there is any additional information your board may require, please contact me. I will reply to all your inquiries as quickly as possible.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Copies from Service Record (7pgs)
 Police Record Check Data (2pgs)
 Copies from Medical Record (2pgs)
Copy of Questionnaire about Military Service
 Copy of Reply Concerning Military Records
Thank You Letter from St. John Neumann Catholic Church

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
          Inactive: USMCR(J)                851231 - 860610  COG
Period of Service Under Review :
Date of Enlistment: 860611               Date of Discharge: 920103

 Length of Service (years, months, days):
         Active: 05 06 23
          Inactive: None
Age at Entry: 19                          Years Contracted: 6

 Education Level: 12                        AFQT: 58
Highest Rank: Cpl

 Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: 4.0 (14)             Conduct: 4.0 (14)

 Military Decorations: None
Unit/Campaign/Service Awards: Rifle Marksmanship Badge, NDSM, SASM, CAR, SSDRw3*

Days of Unauthorized Absence: None

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

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

 Chronological Listing of Significant Service Events :

871106:  NJP for violation of UCMJ, Article 90: At Camp Hansen, Okinawa, JA, on or about 2315, 871105, willfully disobeyed a lawful command of Lt B.E. F___ to remain in his rack in the barracks except for mess.
 Awarded forfeiture of $189.00 per month for 1 month, restriction for 14 days, extra duties for 14 days for a period of 2 hours per day excluding Sunday (suspended for 6 months). Not appealed.
880210:  Suspension of NJP imposed and suspended on 871106 for a period of 6 months is hereby vacated.
880215:  NJP for violation of UCMJ, Article 91: At F Co, 2dBn, 3dMar, 1stMAB, 2100, 880205, willfully disobey order from Sgt L. W____ to clean his M16A2 rifle before turning it in to the Battalion armory.
         Award: Forfeiture of $190.00 per month for 1 month, restriction for 14 days (suspended for 6 months), 14 days extra duty for a period of 2 hours per day excluding Sundays 14 days (suspended for 6 months). Not appealed.
xxxxxx:  Counseled for deficiencies in performance and conduct. [Lack of Leadership and proficiency as an NCO]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
900112:  Counseled for deficiencies in performance and conduct. [Displaying poor leadership and performance as a squad leader at PTA]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
900902:  Counseled for deficiencies in performance and conduct. [Conduct unbecoming an NCO, No leadership abilities, failure to follow directions and orders]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
901229:  NJP for violation of UCMJ, Article 91: At Fox Co. 2d Bn 3dMar Camp R Hansen Okinawa, 1630, 900913, willfully disobey the order of Sgt V___ to be in the recreation room.
         Award: Forfeiture of $75.00 per month for 1 month. Not appealed.
910821:  Counseled for deficiencies in performance and conduct. [Substandard Performance, you are lacking in Leadership Traits such as Knowledge, Judgement, Bearing, Tact, integrity, you consistently fail to supervise simple task as a Fire-Team Leader]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
911011:  Counseled for deficiencies in performance and conduct. [Frequent involvement with Military Authorities: You have had 4 NJP's in your present enlistment. Article 90 disobedience to orders dtd 871112, Article 91 disobedience to orders dtd 880217, Article 91 disobedience to orders dtd 901229, and Article 134, 123A. made 5 worthless checks total amount of $700.00]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
911011:  NJP for violation of UCMJ, Article 123a: At Hawaii Area Exchange, 910722 and 910723, with intent to defraud, made checks (total # checks 3) to the Marine Corps Exchange upon the Navy FCU in the total amount of $340.00 then knowing he did not have sufficient funds in the bank for payment, violation of UCMJ Article 134: At KMCAS, KANHI, 910622, make and utter check number 10 for $200.00, 910714 check number 3 for $400.00 (total # checks 2), dishonorably failed to maintain sufficient funds to cover the checks on presentment..
         Award: Forfeiture of $500.00 per month for 2 months, restriction for 30 days, reduction to E-3. Not appealed.

 911016:  NJP for violation of UCMJ, Article 91: At Camp Hansen, Okinawa, Japan, 1505, 911012, disrespectful in language to 1stSgt B_____by saying to him, "Go fuck yourself", violation of UCMJ Article 134: At Camp Hansen, Okinawa, Japan, 1310, 911012, broke restriction.
         Award: Forfeiture of $400.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. Not appealed.
911113:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.
911118:          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.
911118:  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 your failure to conform to the standards of the Marine Corps. You have received five NJP's. You have been counseled concerning your deficiencies as evidenced by your service record. Your response has been further violations of the UCMJ. By your actions and inability to respond to counseling, you have demonstrated that you have no potential for further honorable service.

911127:  SJA review determined the case sufficient in law and fact.
911202:  GCMCA [Commanding General, 3d Marine Division] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 920103 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 proper and equitable (D and E).
Issue 1. There is no regulation that states a service member’s characterization of service will be honorable if the member is within a given amount of time from the end of his enlistment. The Board disagrees with the applicant’s assertion that his overall service record warrants an honorable discharge. 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) for offenses triable by court-martial on five occasions and adverse counseling entries on other occasions. The applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful disobedience of the orders and directives which regulate good order and discipline in naval service, and falls short of that required for an honorable characterization of service. An upgrade to honorable or change to the narrative reason for separation would be inappropriate. It must be noted that most Marines serve honorably and well and therefore earn honorable discharges. In fairness to those Marines, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due. Relief denied.
The Board found that the applicant’s age, education level, and test scores qualified him for enlistment. While he may feel that his personal problems at the time were factors that contributed to his actions, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service. The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.
The Board found no evidence the applicant was treated unfairly by his command or that any punishment he received for his disciplinary infractions was too severe. 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.

Pertinent Regulation/Law (at time of discharge)
A. Paragraph 6210, Misconduct, of the Marine Corps Separation and Retirement Manual, ( MCO P1900.16D), effective 27 Jun 89 until 17 Aug 95.

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 90 and 91, disobeying orders; Article 123a, intent to defraud; and Article 134, breaking restriction.
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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