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USMC | DRB | 2001_Marine | MD01-00995
Original file (MD01-00995.rtf) Auto-classification: Denied


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


ex-LCpl, USMC
Docket No. MD01-00995

Applicant’s Request
The application for discharge review, received 010730, 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 list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020320. 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 HONORABLE CONDITIONS (GENERAL)/Misconduct-Pattern of misconduct (with administrative discharge board), authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues

1. My discharge is improper due to the applicant being falsely accused of an assault charge which extended to four more charges as a plot to find same guilty of at least one to two charges so that disciplinary actions could be imposed.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
 Copy of DD Form 215

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
          Inactive: USMCR(J)                861208 - 871004  COG
Period of Service Under Review :
Date of Enlistment: 871005               Date of Discharge: 930915

 Length of Service (years, months, days):
         Active: 05 11 11
          Inactive: None
Age at Entry: 19                          Years Contracted: 6

 Education Level: 12                        AFQT: 61
Highest Rank: Cpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.5 (17)                      Conduct: 4.4 (17)
Military Decorations: None

 Unit/Campaign/Service Awards: Certificate of Appreciation, SSDR, GCM, NDSM, MUC
Days of Unauthorized Absence: 24

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

UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct-Pattern of misconduct (with administrative discharge board), authority: MARCORSEPMAN Par. 6210.3.

 Chronological Listing of Significant Service Events :

910206:  Counseled for deficiencies in performance and conduct. [Striking his wife or another female after going to counseling.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
910918:  Counseled for deficiencies in performance and conduct. [Professionalism, attention to detail, attitudes.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
911231:  Counseled for deficiencies in performance and conduct. [Grasp job knowledge, judgement/initiative, attention to detail.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
920305:  Counseled for deficiencies in performance and conduct. [Following rules and regulations of the UCMJ.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
920305:  NJP for violation of UCMJ, Article 91 (2 specs):
 Specification 1: Willfully disobey an order of 1 st Sgt to surrender his AFID card and to tell him his name on 15Feb92.
 Specification 2: Disrespectful to 1 st Sgt by saying to him "Go ahead and look hard" on 15Feb92.
Violation of UCMJ, Article 92:
 Specification: Derelict in performance of duties a non-commissioned officer, by telling LCpl not to tell 1 st Sgt his name on 15Feb92.
 Awarded forfeiture of $200.00 per month for 2 months, reduction to LCpl. Appealed 920311. Appeal denied 920325.
920310:  Counseled for deficiencies in performance and conduct. [Violations of the UCMJ, poor attitude, disrespect, failure to follow rules and regulations, and failure to conform to regulations regarding your responsibilities as a non-commissioned officer.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
920403:  Counseled for deficiencies in performance and conduct. [Unprofessional attitude toward customers while on the job.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
921124:  Counseled for deficiencies in performance and conduct. [Unprofessional attitude toward a warrant officer and a 1 st Lt.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
930625:  Summary Court-Martial.
          Charge I: violation of the UCMJ, Article 89.
         Specification: Disrespect toward 1 st Lt, by shouting "Don't put your finger in my face, sir" on 24Nov92.
         Charge II: violation of UCMJ, Article 90:
          Specification: Strike 1 st Lt on the right hand and wrist on 24Nov92.
          Charge III: violation of the UCMJ, Article 91 (2 specs):
 Specification 1: Willfully disobey a lawful order from CWO-4 on 24Nov92.
Specification 2: Willfully disobey a lawful order from Sgt to move on, on 4Mar93.
 Charge IV: violation of UCMJ, Article 92 (2 specs):
 Specification 1: Fail to obey a lawful order issued by CO, to wit: BnO 11101.1A, paragraph 3, subparagraph 11, dated 890211 by wrongfully having intercourse with LCpl, in room 120, building 2002 during Feb93.
 Specification 2: Fail to obey a lawful order issued by CO, to wit: BnO 11101.1A paragraph 3, subparagraph rr dated 890211 by wrongfully being an unauthorized guest in the room of LCpl after 2200 hours during Feb93.
 Charge V: violation of UCMJ, Article 128:
 Specification: Unlawfully strike Cpl, by forcefully grabbing her in the chest area, slamming her back against a wall, and slapping her in the back, of the head on 24Nov92.
 Add Chg I: violation of UCMJ, Article 91:
 Specification: Willfully disobey lawful order from Captain to stay away from Cpl on 19Jun93.
 Add Chg II: violation of UCMJ, Article 117:
 Specification: Use reproachful words by shouting to wit: "fuck you" and gestures to wit: by sticking his middle finger up towards Corporal on 18Jun93.
          Finding: to Charge I, III, IV specification 2 and additional charge I and the specifications thereunder, guilty. To Charge II, IV specification 1, V, and additional charge II and specification thereunder, not guility.
          Sentence: forfeiture of $400.00, confinement for 29 days, reduced to LCpl.
          CA action 930706: Sentence approved and ordered executed.
930721:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
930726:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
930726:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct. The factual basis for this recommendation was continued misconduct and disregard for military authority.

930817:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to a pattern of misconduct, that the misconduct warranted separation, and by a vote of 2 to 1 recommended discharge under honorable conditions (general).

930910:  SJA review determined the case sufficient in law and fact.

 930910:  GCMCA [Commanding General, Marine Corps Combat Development Command] directed the applicant's discharge under honorable conditions (general) by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 930915 under honorable conditions (general) for misconduct due to a pattern of misconduct (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. In response to the applicant’s issue, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. The NDRB found the applicant’s service record and documentation provided by the applicant devoid of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded. Relief denied.
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 89, disrespect toward a superior commissioned officer; Article 91, insubordinate conduct toward a non-commissioned officer; Article 92, failure to obey a lawful general order; Article 117, provoking gesture.
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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