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USMC | DRB | 2002_Marine | MD02-00370
Original file (MD02-00370.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD02-00370

Applicant’s Request
The application for discharge review, received 020204, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to End of Contract. The applicant requested a personal appearance hearing discharge review. The applicant did not designate a 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 021008. 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 and narrative reason for discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.6.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


 Issues, as submitted

1. My discharge was inequitable because it was based on one isolated incident in 9 years of total service and 45 days recruiting.

2. Unlawful command influence on the administrative discharge board and on the Commanding General's decision on the members recommendation.

3. Lack of training by the recruiting command and improper training from the recruiting station NCOIC led to all charges against me.

4. NCOIC had a history of recruiting misconduct though was placed in position of NCOIC with no command supervision as agreed to by the NCOIC and the CO.

5. I was offered Amnesty during initial investigation if I came forward with any information of the NCOIC's wrong doing.

6. I had to sign a cleansing statement before being charged and was led to believe any statements I made until this point were inadmissable; yet the final report contained these statements.

7. The Recruiting Command was inconsistent in it's handling of all Marines involved.

8. The XO statements during the Administrative Board were false and misleading.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Applicant's Explanation letter to the Board, undtd
Copy of the Admin Discharge package (7 pages)
Copy of Extension Agreement
 Numerous duplicated copies of Service Record Book pages (including reenlistment contract, extension agreement, Fitness Reports, Awards, Citations, Conviction by Summary Court-Martial dtd June 11, 2001, etc.)
Applicant's address update with photo dtd March 22, 2002
CO, U.S. MCRS Buffalo, Appointment as Key Volunteer letter to Mrs. R_ K_ (Applicant's Wife) dtd November 1, 2000
Copy of DD Form 214
Applicant's ltr to the Board dtd May 11, 2002
Applicant's Spouse ltr to the board dtd May 11, 2002
 Character Reference ltr from E_ J. K_, RDH dtd June 6, 2001 on behalf of Applicant investigation of recruiter misconduct
Admin Board Recommendation dtd August 10, 2001
Character Reference ltr, undtd from Gunnery Sergeant L_ W_, USMC
Letter of Support for Applicant from Msgt D_ B_, USMC dtd June 7, 2001
Letter of Support for Applicant, undtd, from N_ A_
Applicant's Relief for Cause letter of March 12, 200l
Recruiter's Activity Records, Data Collection Sheets, Assignments, Recruiting Regulations, Policies, and Procedures, Training Reports
Numerous pages of command's investigation of alleged malpractice occurring at the Recruiting Station

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              920720 - 971023  HON
         Inactive: USMCR(J)                910725 - 920719  COG

 Period of Service Under Review :
Date of Enlistment: 971024               Date of Discharge: 010831

 Length of Service (years, months, days):

         Active: 03 10 08
         Inactive: None

 Age at Entry: 23                          Years Contracted: 4 (11 months extension)

 Education Level: 12                        AFQT: 89

 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: NMCAM(2), GCM(2), SSDR(3), AFSM, NATO Medal, NDSM, JMUA, MUC, LoA (2), MM(5)

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.6.

 Chronological Listing of Significant Service Events :

971024   Reenlisted at VMAQ, 2DMAW, MAG 14, Incerlic Airbase, Turkey, for 4 years.
010315:  CO, 1 st Marine Corps District recommended to the CMC that applicant be relieved for cause due to misconduct. Applicant unfit for independent duty and his actions have soiled the reputation of the Marine Corps in the recruiting region.

010608:  Summary Court-Martial
         Charge I: violation of the UCMJ, Article 81, 2 Specifications.
         Specification 1: between, during, or about Aug 2000 and Dec 2000, conspire with SSgt C_ H. F_, USMC, to commit an offense under the UMCJ, to wit: wrongfully effecting the unlawful enlistment of S_ A. S_ as a Private in the USMC by not disclosing his pending criminal charges.
         Specification 2: did, at or near Recruiting Substation T_, NY, on divers occasions, between, during, or about Dec 2000 and Jan 2001, conspire with SSgt C_ H. F_, SSgt P_ B. S_, Sgt K_ D. D_ and Sgt T_ R. W_, USMC, to commit an offense under the UCMJ, to wit: wrongful violation of a lawful general order, by wrongfully suggesting cures and remedies to an overweight prospective recruit applicant, and in order to effect the object of the conspiracy, purchased laxatives for consumption by poolee and SSgt F_, SSgt K_ (Applicant), SSgt S_, Sgt D_ and Sgt W_ met together with the poolee at Recruiting Substation T_ and coordinated her consumption of laxatives and excessive physical training.
         Charge II: violation of the UCMJ, Article 84:
         Specification: on or about 16 Dec 2000, effect the enlistment of S_ A. S_ as a Private in the USMC, then well knowing that the recruit was ineligible for such enlistment because he was on Adjournment Contemplating Dismissal of criminal charges pending against him.
         Charge III: violation of the UCMJ, Article 92, 2 Specifications.
         Specification 1: on divers occasions, between, during, or about Dec 2000 and Jan 2001, violate a lawful general order, to wit: by wrongfully purchasing laxative for consumption by, and participating in the excessive physical training of, an overweight prospective recruit applicant.
         Specification 2: having knowledge of a lawful order issued by Col P_ C. A_, USMC, to wit: an order which it was his duty to obey, did, on divers occasions, between, during, or about Sep 2000 and Mar 2001, invite and escort a prospective recruit applicant into a recruiter's residence, and possess and consume alcoholic beverages in a First Marine Corps District recruiting facility.
         Additional Charge: violation of the UCMJ, Article 92:
         Specification: who knew or should have known of his duties at or near the Recruiting Substation from about Dec 2000 to about Jan 2001, to not suggest medical cures or remedies to prospective recruit applicants, was on divers occasions, derelict in the performance of those duties in that he willfully purchased laxatives for consumption by, and conducted excessive physical training of C_ C. A_, an overweight prospective recruit applicant.
         Findings: to Charge I and specification - guilty; to Charge II and specifications 1 and 2 - guilty.
         Sentence: Forfeiture of $1000.00 per month for 1 month.
         CA 010611: Sentence approved and ordered executed.
010815:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to the commission of a serious offense, that the misconduct warranted separation, and recommended discharge under other than honorable conditions, but recommended suspension of the separation for 12 months.

010824:  SJA review determined the case sufficient in law and fact.

010824:  GCMCA [CG, MCRD, Easter Recruiting Region, Parris Island] directed the applicant's discharge without suspension, under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

010831:  Applicant reduced to pay grade E-3 and discharged under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 010831 under other than honorable conditions for misconduct due to the commission of a serious offense (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. A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a Marine. T he applicant’s service was marred by the commission of a serious offense which consisted of effecting an unlawful enlistment and violating orders. 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 the naval service, and falls short of that required for an honorable characterization of service. Despite the applicant’s length of service and brief time on recruiting duty, an upgrade to honorable would be inappropriate. Relief denied.

Issue 2. The Board discerned no unlawful command influence in regard to the applicant’s administrative separation. The President of the applicant’s administrative discharge board acted within his authority in allowing the testimony of the CO, 1 st Marine Corps District. Relief denied.

Issues 3 and 4. The Board found that the applicant’s training, limited experience as a recruiter and the improper actions of his NCOIC are insufficient to mitigate the applicant’s misconduct. While he may feel that his NCOIC’s behavior and a lack of command supervision were factors that contributed to his actions, the record clearly reflects the applicant’s 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.

Issues 5-8. The applicant failed to provide sufficient documentation to demonstrate that an inequity or impropriety occurred in regard to the applicant’s discharge. The Board found no indication that the applicant’s command used the applicant’s statements in an unlawful manner, that the punishment the applicant received for his misconduct was inequitable, or that the findings of his administrative discharge board were inequitable or improper. 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. Relief not warranted.

The applicant 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. Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

 A. Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual (MCO P1900.16E), effective 31 January 1997 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 81, conspiracy, Article 84, effecting unlawful enlistment, and Article 92, failure to obey a lawful general order.
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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