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USMC | DRB | 2001_Marine | MD01-01034
Original file (MD01-01034.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD01-01034

Applicant’s Request
The application for discharge review, received 010807, 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 020215. 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/Misconduct-Pattern of misconduct (with administrative discharge board), authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues


1. My Undesirable Discharge was inequitable because it occurred due to events that happened while I was assigned overseas for temporary duty for training in Korea and Japan and unable to take physical control and responsibility for those events.
Before being transferred to Korea and Japan on temporary duty for training I was instructed to give my wife, at the time, a General Power of Attorney to handle affairs while I was gone. I took this as an order and complied. My entire military pay went to her from that point on. While I was in Korea I received none of my pay and my wife sent no money. I took the duties of friends who would pay me to stand overnight watch, driver, barracks watch, flight-line duty, etc. The money I received from taking these extra duties was the only money I had to live on while overseas.
During this period, my wife used my Power of Attorney to purchase furniture in my name that we could not afford. She also stopped paying our regular monthly bills. She did this without my knowledge. I was not aware of any problem until I my superiors counseled me about an overdue, extremely high calling card debt. I had been using that calling card to call my wife and children on an occasional basis. Unfortunately, my wife never paid the bills. All of this, of course, reflected negatively on my quality of service.
I feel that, had I been directly in control of this situation my military service would have resulted with a more positive outcome. Prior to reenlistment, my service performance was outstanding. I had just been promoted to corporal and was awarded a good conduct medal. I was permitted to train at a higher, more technical level of maintenance than my rank required. This was done because my shop leader felt I had a higher potential. It was because of this that I was motivated to reenlist. Unfortunately, shortly after leaving for temporary duty, this all was shattered and the resultant discharge was issued.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Employment Reference Letter
Reference Letter from Creditor (Hiddenite Auto)
Criminal Record Check Request (5pgs)
Character Reference Letters (3)
Copy of DD Form 214
Copy of Certification of Military Service
Letter from North Carolina Department of Administration

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):
         Active: USMC              840618 - 870719  HON
         Inactive: USMCR(J)                830627 - 840617  COG

 Period of Service Under Review :
Date of Enlistment: 870720               Date of Discharge: 891108

 Length of Service (years, months, days):

         Active: 02 03 19
         Inactive: None

 Age at Entry: 21                          Years Contracted: 4

Education Level: 12                        AFQT: 54

 Highest Rank: Cpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.4 (12)                      Conduct: 4.3 (12)

 Military Decorations: None

 Unit/Campaign/Service Awards: Rifle Marksman Badge, LOA(2), GCM, SSDR

 Days of Unauthorized Absence: None

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

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

 Chronological Listing of Significant Service Events :

870726:  NJP for violation of UCMJ, Article 134: In that LCpl C____ being indebted to McMahon's Furniture Store in the sum of $584.14, did dishonorably fail to pay said debt.
         Award: Reduction to E-2 (suspended for 6 months). Appealed 890801 .Appealed denied 890808.

871123:  Counseled for deficiencies in performance and conduct. [Concerning two letters of indebtedness received at this command from Furniture for Less Hanford Ca, and Ford King Market Lemoore, Ca; also on checks which were returned due to insufficient funds from K-Mart, Thrifty, 7-11 Save Mart, and Leoni Drugs all located in Hanford or Lemoore Ca]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

890126:  Notification of Returned Checks.

890329:  NJP for violation of UCMJ, Article 134: In that Cpl C___ being indebted to the United Telephone System SE Group in the sum of $652.71 for outstanding phone calls did, dishonorably fail to pay said debt.
         Award: Forfeiture of $100.00 pay per month for 2 months (suspended for 6 months), extra duty for 14 days, reduction to E-3 (suspended for 6 months). Not appealed.

890726:  Suspension of NJP imposed and suspended on 890329 for a period of 6 months is hereby vacated and the punishment is ordered executed this date.

890823:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
890825:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
890907:  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 recommended discharge under other than honorable conditions.

891019:  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 your misconduct due to an established pattern of dishonorable failure to pay just debts. This is documented by the page 11 counseling entry dated 891123 which concerns the receipt of two letters of indebtedness received by MATSG, NAS Lemoore, CA from Furniture of Less of Hanford, CA and Food King Market of Lemoore, CA; also checks which were returned due to insufficient funds from K-Mart, Thrifty, 7-11, Save Mart, and Leoni Drugs all located in Hanford or Lemoore, CA. It is also documented by the two NJP's received while member of this command. The first NJP held on 890329 for failure to pay just debt to the United Telephone System SE Group the sum of $652.71 for outstanding phone calls and the second NJP held on 890726 for failure to pay just debt to McMahon Furniture Store the sum of $584.14.

891031:  SJA review determined the case sufficient in law and fact.

891031:  GCMCA [Commanding General] directed the applicant's discharge under other than honorable conditions 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 891108 under other than honorable conditions for misconduct due to a pattern of misconduct (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 proper and equitable (C and D).

Issue 1. While the applicant feels that his requirement to designate a power of attorney while deployed and marital problems were factors that contributed to his actions, 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. A characterization of service of 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 two occasions and adverse counseling entries on other occasions. 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. 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 “ 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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