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Decision Text

USMC | DRB | 2002_Marine | MD02-00516
Original file (MD02-00516.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD02-00516

Applicant’s Request
The application for discharge review, received 020305, 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 021115. 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, authority: MARCORSEPMAN Par. 6210.6.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


 Issues

1. I received a court-martial, and received a minor punishment, yet I believe that despite the minor punishment, I was tried twice for, two times, the same thing, the whole story is in my written statement.

 To whom it may concern,

2. My name is K_ D_. I have been discharged from the US Marine Corps and have been unemployed for over two months now. I was recently denied any unemployment insurance for myself to support my family, and have been told that I cannot receive any federal or state benefits to include education assistance and disability. I am trying to become a Law Enforcement officer or Corrections officer, so I can assure you I take my discharge very serious and when I tell you I have a good case and that I was not only wrongfully discharged, but given an Other than honorable despite not deserving it, I have done my homework.
 I was a Marine Corps recruiter who was stationed in the small office Recruiting Sub-Station Tonawanda with four other Marines. Our boss, who was working out of Tonawanda with 7 years experience recruiting, was in charge of us. If you truly want to hear an upsetting story about how soldiers in the military, specifically the Marine Corps, can be hung out to dry and completely cut off from all support, then read on because the story is true, and the facts are included.
I will start from the beginning. Some of what I write may be denied by my chain of command, but I have first hand witnesses, and many of them. The Command on the other hand, is working off of speculation and what they want to be true to not bury them and their recruiting effort.
I was in the Marine corps going on 6 years. I had an excellent record. No flaws, no punitive actions, and as far as my record book was concerned, there was nothing at all under punishments. I had served honorably for those six years. I received two good conduct medals, and numerous other awards for my selfless service. Until I was sent to recruiting duty, I served my country proudly.
I'm sure you understand that Recruiters are hard to come by, because nobody wants to do it. All marines that are picked to be possible recruiters must fill out a financial worksheet at their unit to determine eligibility. A recruiter receives an extra $375.00 a month for misc. expenses called SDA (special duty allowance). Well, in my financial worksheet at my old unit, they made me add that $375.00 on the form, which included only my old bills and payments (which were sure to increase once I got into the civilian community). Adding the $375.00 to my worksheet was the only thing that pushed me into the eligible category. They knew this and a couple months down the road, when the investigation started, they took it away from me. After the investigation started in the beginning of March, my SDA was terminated, and we started to have financial problems. This is a very small sample of how the Marine Corps is willing to jeopardize military personnel's lives and families to make their numbers look good. Unfortunately, it gets much worse. To make a long story short, I will tell you of a couple main points of where the corruption mainly lies.
SSgt. F_, who was our boss, and had the 7 years recruiting experience, was the main cause of the problem. He had worked in other recruiting offices in NY, where he was known to have problems associated with women, fraudulently enlisting kids into the Marine Corps, and racism. He was moved from his station and placed in Buffalo where he became the Assistant Recruiter Instructor (ARI). As the ARI, he taught new recruiters coming in from recruiter school how to recruit in the "real world". Here was a criminal, who was charged with putting drugs in a black Marines drink so he would pop positive on a urinalysis, now in charge of new recruiters and telling them how to recruit on the street, with today's kids. Before leaving this job, the Recruiter Instructor (RI) MGySgt. P_, made a deal with SSgt. F_, that the chain of command would not have any command visits to his new office (Tonawanda) for 4 months. The command holds visits to inspect how the office is being run, and to ensure everyone is legally doing their job, and doing it correctly. This visit was avoided the entire time I was stationed in Tonawanda, and SSgt. F_ was cut loose, all on his own, to run things and do things however he wanted. This is exactly what he did. He committed adultery multiple times with girls in the delayed entry program (one of which was only 16 years old), was usually drinking on duty with heavy alcohol, and was in general, a very racist Marine. He also fraudulently enlisted kids into the Marine Corps with the use of laxatives to have them lose weight, a special "tea" to make a urinalysis come out clean so that a kid can enlist, and other things that the command most likely knew about considering his history. He told one girl to tell her boyfriend to enlist this month so we can make our quota, then we will discharge him next month. He would promise bonuses (to include signing and education), jobs, and rank, that the kid would not get or was not eligible for in the first place. All this was done by the Marine, the Command in Recruiting Station Buffalo, picked for the job. By placing SSgt. F_ in charge of two black recruiters and two brand new recruiters, it was a recipe for disaster right away. The command knew how he was, but regardless of how it was done, he got kids into the Marine Corps, and that was good enough for them.
I ended up with 4 charges. They had me down for articles 84, 92, 125, and 134. Effecting the fraudulent enlistment, dereliction of duty/disobeying a direct order, sodomy, and obstruction of justice. My first charge was assisting a fraudulent enlistment. I should not have been charged with this. The kid's name was S_. Supposedly he was a fraud due to court/police involvement. I was new when I first interviewed him. He said he had some trouble with the law. I was on the phone with SSgt. F_, and he told me to hold him there until he got there. I did, and when he got there, he asked the kid if he had a lawyer. He said yes, and gave the name and number to SSgt. F_. Later, SSgt. F_ called the lawyer, talked to him for a while, and then told me that everything was o.k. that he was legal to enlist. I did so, and was charged with it because he was not legal to enlist. The big question was that when someone enlists, they need a police check done. If it was so illegal, how come it didn't end up on the police check? And if it did, how and why did operations cover it up? When someone enlists they also run an etnac, which is a FBI background investigation. The same questions apply. If he was a fraud, someone in the command group or operations covered it up and isn't getting hit for it. If he wasn't a fraud and the background came up clean, why did I get charged? S_ took care of his court issues and is currently in boot camp, I believe. My second charge was a whole bunch of little things thrown into one charge. I used the government vehicle to drive home because one of our cars broke, my wife took the working one to Michigan, and I was left without one. I asked SSgt. F_ if I could get it approved to take it home, but he refused to bother even asking the command. I had to rely on another Marine who worked half an hour away from me to pick me up and drop me off. He told me that I could do whatever I wanted, just don't get caught. In this charge was also excessive physical training of an Applicant. This was done for one reason. SSgt. F_ told us to do everything we did. We even voiced our opinion that what we were doing was excessive, but he didn't want to hear us. He told us that we weren't team players. All the recruiters I worked with including myself had a beer or two in the office. SSgt. F_ was an alcoholic. He had told us that we could either take a beer and be a team player and go home, or spend the next two hours on the phones recruiting. Keep in mind this was already late at night. Considering all of us rarely see our families as it was in that job, we did it to shut him up. The third charge was sodomy. I did make a mistake by getting a blowjob from a girl. She was disqualified for enlistment by two Marine Corps recruiters and therefore wasn't an Applicant, and didn't want any part of it regardless. It was a one-time thing, and never happened again. I was also accused of committing sodomy with a poolee, but this never happened. This was the same girl, however, who committed adultery with SSgt. F_, so I'm thinking some deal was made with her. My last charge was obstruction of justice. This was another charge I should have had nothing to do with. One night, just like any other, SSgt. F_ called me out of the blue and asked me basic questions. Do you have three appointments for tomorrow? What are you up to? After a while he told me to call all of my poolees, which was common, and ask them not to talk to anyone tonight until he called them all back. This was a bit uncommon, but regardless, I had no reason to think something was going on. I called all my poolees once, and if I got a hold of them I told them what he told me to. If I didn't get a hold of them I didn't try calling back. The next day we found out that SSgt. F_ and another recruiter was subject to an investigation. That same day we were offered a period to come forward with anything without reprimand. This was given by MGySgt. P_ and Capt. M_, both working in Buffalo HQ. That day I told them about S_ M_, because even though I thought it was nothing, I didn't want it coming back to haunt me, and I also told them about the phone calls. Later, we were told by an officer from First Marine Corps District and Capt. M_, with a GySgt. From HQ as witness, that we were not authorized to have a period to come clean, and we were told to sign a “cleansing statement" by the officer from district. These are all relevant circumstances behind the charges, but I was told that they didn't want to hear the circumstances. I feel I honestly made mistakes, but only violated two charges, not four. Initially, I was charged with six charges so that the command could really bury me. There are three types of court-martials. With all the charges they had on me at first, they wanted to give two of the other recruiters and myself a Special court-martial. In order to get it reduced to a Summary court-martial, I had to say I was guilty of the four charges in the Summary, and also waive my administrative discharge board. If I was completely guilty, and they knew it, then why make me waive the administrative board? The administrative discharge board is the time where you can defend yourself if your command decides to try and administratively discharge you. Out of a Special court-martial I could get 6 months in the brig (confinement), 6 months 2/3 reduced pay, and a bad conduct discharge. I would also receive a federal conviction for any charge I was convicted of. Therefore, it was a cutthroat situation where I had to think of my future and family, so I agreed to a Summary court-martial. My punishment could have been reduced one rank, 2/3 pay reduced for one month, and one month confinement. I received reduction one rank, and an 800-dollar fine, which is certainly, less than 2/3 pay. Out of the Summary court-martial, I received a very small punishment, mainly because the charges and the circumstances behind them were minor. The Marine who did my Summary court-martial told me to shake it off, and that it would be easy to come back and make my career successful. Everything seemed like it was over and it was going to work out. However, things would change because the command wasn't happy with the outcome.
I was informed that my command was going to put a package in to discharge me. I was in shock and very upset. What the command did was let the Marine Corps legal system do their job, which they did, but then take it farther by taking matters into their own hands. So, in other words, the Marine Corps has its legal system, but if the command you're working under doesn't find the punishment bad enough, they have the right to take it higher? Our Commanding Officer, Major W_, had told one of the Marines, SSgt. K_, who was going through the same situation as me with some different circumstances, that processing for an administrative discharge is SOP after a court-martial. However, the administrative chief told us that we are the first administrative discharges he has seen (except one for a weight control problem) while at that command, and there have been plenty of court-martials. He lied to SSgt. K_, and to my wife. This doesn't surprise me, considering Sgt. S_ (one of the Marines I was in this with) was told by a G_ G_, (an underage Applicant for the Marines), that Major W_ gave him a beer one night in November 2000. GySgt. G_ (who now works in operations) also confirmed this with Sgt. S_. This is the head of the Marines in the Buffalo recruiting region, and he can't himself live up to the standards he was trying to discharge us with. What is even worse is that he has told my wife and myself that due to the seriousness of the charges that I don't deserve to be an NCO, or a Marine. He doesn't know me, never worked for me, and to this day doesn't know the truth or the circumstances behind what I actually did.
The real corruption starts here. In order to be discharged, there has to be a reason. It can't be the court-martial, because we had already received the punishment for that. It would either be a pattern of misconduct (which there was none of), or commission of a serious offense (which is what they said I had committed). None of my charges are even charges in the civilian community. They stated that my serious offense was what supposedly happened with the poolee of mine, C_ R_, in which I have denied any and all acts of sex or sodomy from the beginning. I have two very valid points to this. 1 . This serious offense was only deemed serious by my CO, Maj. W_ because it was a charge in my court-martial, which by definition made it a minor offense. 2. If it was so serious, then why did this poolee, who also signed the papers stating that her conduct now represents that of a Marine, stay in the Delayed Entry Program? SSgt. F_ was also found guilty of committing adultery with this girl, yet they kept her in the Pool program. Why? Because they are more interested in making quota than they are about retaining the good Marines they already had. If it was serious enough for me to get discharged, then she should have been also. If she wasn't to be kicked out of the Delayed Entry Program and given a second chance, then I should have received one also. The corruption was that by definition, "the function of the summary court-martial is to promptly adjudicate minor offenses under a simple procedure." By this simple definition, I could not have committed a serious offense; otherwise I would have received a different court-martial. Besides, if it was such a serious offense, then why force me to waive my administrative separation board? Could it be because if I got in front of the board they would see that it wasn't so serious? Was it because they knew that for me to look out for my future I needed a summary and this was a sure-fire way for them to kick me out on their terms? The command disregarded this simple definition and fact and submitted my discharge package to First Marine Corps District, where it then fell under Colonel T_. He obviously decided that how could his Major be wrong and a Sergeant, now Corporal, be right? Obviously I was viewed as a criminal. The Recruiter Instructor (RI, who was MgySgt. P_), who when the investigation started offered us amnesty, had also been relieved of his job. Although we were offered amnesty, the statements were used against us since we signed cleansing statements. We didn't know our Integrity would kick us in the ass. The command gave him another job quickly, and he still retired and received an honorable discharge. He told us one day before retiring, that the command took this too far, and that we were guilty from the beginning in their minds. He was convinced that they would stop at nothing to destroy our career. They wanted to do this for a couple reasons. One was because we were involved with SSgt. F_, and because he was such an asset to the command with his numerous years of experience, they were upset with us. Two, because we know about the illegal and mistreating ways the Command is run.
I was now facing an administrative discharge. There are three under this category. Honorable, General, or Other Than Honorable. They wanted us to get an OTH. There were three of us facing an administrative discharge. One of my fellow Marines going through this was Sgt. (former SSgt.) S_, who had the same number of charges as me. His contract was going to run out before they could administratively separate him, and although they tried to extend his enlistment, they couldn't get him. They'd waited too long and his contract ran out July 23. He received an Honorable discharge, and received separation pay, which came out to about $15,000.
Another point in corruption, would be the definition of the discharges. The worst of three Admin discharges is other than honorable. The definition... "Constitutes a significant departure from the conduct expected of a Marine; the use of force or violence to produce serious bodily injury or death, acts or omissions that endanger the security of the Marine Corps, deliberate acts or omissions that seriously endanger the health and safety of others, and drugs, abuse "...certainly doesn't fit me. The next is a general discharge, ... "is warranted when significant negative aspects of the member's conduct and performance of duty outweigh positive aspects of the member's military record" . Looking at my record book from the past 6 years, anyone can see that this is not true. There was no way I should be receiving anything less than an honorable discharge. In the Marine Corps separation and retirement manual, page 1-14, paragraph 4 states that characterization will be determined solely by the member's military record during the current enlistment or period of service." Also, on page 6-55 of the same book, it states under paragraph 'd' that "the use of such records shall normally be limited to those cases involving patterns of conduct manifested over a period of time. Isolated incidents and events that are remote in time normally have little value in determining whether administrative separation is appropriate ". The corruption is that the command in Buffalo headed by Major W_, and the 1 st Marine Corps District previously led by Colonel A_, and currently headed by Colonel T_, doesn't go by what the Marine Corps states in the manuals they produce. They're led more by how offended they are and how much they want to bury us and make us disappear.
Since I didn't have an administrative separation board, I submitted a package to Brigadier General C_, with a letter in there stating why I shouldn't be discharged. I'm not sure if it was him, or one of his legal Marines, but somebody found something in that letter that they didn't like. This is the one letter to the one Marine who could give me a last chance. Instead they come back and tell me that a charge of false official statement or perjury is coming down on me. My lawyer told me that I should send anything I want, because it probably wouldn't help me anyway. That is when I knew that nobody in the recruiting chain of command, all the way to the top, is interested in my story or how badly my family and myself have been treated. I cannot even speak my mind or show how I had to shape myself and say things I knew I shouldn't be saying. For the first time in over 6 years, the Marine Corps left me alone. No Band of Brothers, no Esprit de Corps, and certainly no Semper Fidelis. Is this how Marines in the present and future are to be dealt with?
On July 31, I was discharged with an other than honorable discharge. The reasoning was for misconduct due to commission of a serious offense. As the manual states, I can be reduced another rank for being administratively discharged with another than honorable discharge. I have gone from Sgt. to LCpl. I will not be able to receive my G.I. Bill, which totals over $20,000. I will find it very difficult to acquire a job. I may not be able to receive unemployment, due to the type of discharge. I have 2 small children and a wife who's diabetic. I was discharged 6 days after being told I was receiving another than honorable discharge. We have no money, no home of our own, and no jobs. We have no time to prepare to move, and are now completely caught off-guard. RS B_ couldn't even give us enough time to receive our advance pay for moving expenses. I had to borrow money from my mother in law because the admin clerk, Sgt. B_, told me that the travel claim would take 2-3 days. Instead, it took a week and a half. How do we make it? How do we pay our bills? One isolated event, the first mistake I've made in the Corps and I am losing everything except my family just because one command group fails to morally prioritize. Their priority seems to have been to pass the buck, and make sure they weren't held accountable for their actions.
I read an article in which the SgtMaj of the Marine Corps, SgtMaj. M_ made some outstanding quotes in it. I picked out some lines that should apply to the entire Marine Corps, but apparently did not apply to me in my recent dilemma:
"They also trust, as they should, that we will tolerate their mistakes, knowing that by learning from them they will become better Marines."
 -Captain R_ (the Operations officer) and Captain M_ (the Executive officer) both conducted the investigation. It was done more like an interrogation. My career was threatened if I didn't speak. I had a wife and kids to think about. They did not worry about them or me. They were never concerned with the circumstances behind my charges. I know this because a Major from 1st Marine Corps District who came down to do some of the investigation for district told me this to my face. He also had us sign a "cleansing statement", which nobody has ever heard of. This statement was supposed to cleanse the fact that MgySgt. P_ gave us amnesty. Another faltered operation by them that needed to be covered up. After the investigation, we were treated poorly. We were treated so badly and ridiculed that we contacted our congressman. We didn't do it because of our accusations at the time, but because we were treated like privates, guilty until proven guilty. Captain R_ ridiculed me in front of other Marines for talking to the congressman.
 "And now operate in an environment characterized by an expectation of 'zero defects' supported by micro-management."

"Another example-potentially more damaging-is what happens when our young PFC makes a mistake. Perhaps it is a night of drunkenness, or maybe he has damaged some equipment through inattention. Whatever the case, all too often, he is marked as 'damaged goods' by the command and finds himself cast aside with the characterization that his discharge would improve the Corps."
 -When I attended recruiter school, they told us that we would leave here not knowing half of what we need to know. The rest we will learn on the street with our NCOIC. Recruiting was a completely new job for me, and I felt like a PFC not knowing what to do. It just so happens that my NCOIC was SSgt. F_, and that what he taught me and the other Marines under him was, on a lot of occasions, untrue. With no command visits, how were we supposed to know the difference?
"The simple solution is to trust Marines to do what is expected and then tolerate their mistakes."

"Marines are left with the sense that exercising their initiative is discouraged."
 -When I first arrived at Buffalo, I was consistently told to follow SSgt. F_, that if I wanted to become successful, I should do what he does, do what he tells me to do, and spend as much time with him as possible.
Even a high ranking officer in the Navy who fully admits his guilt with the nuclear submarine and fishing boat accident that claimed the lives of many is allowed to retire, and he won't receive an Other than Honorable discharge. For all those reasons I wrote this. In the hopes you could use it to see why those who already have poisoned the Marine Corps are weeding out Marines who make mistakes. To show how the Marines in Buffalo get people in the Marine Corps, how they punish the people doing their dirty work, and how they treat the Marines and their families who work for them.
I love the Marine Corps. I never wanted anything more than to be a Marine. However, I have never in my 6+ years seen a more poorly maintained and operated unit ever. The new SgtMaj. of Buffalo asked all the recruiters about the command, and they said they would never talk to them or deal with them if they didn't have to. The fact being that they don't trust anyone in the command group. Everyone I have told the story to has told me that it is wrong, that it is a witch-hunt, and I am merely a scapegoat. The 1st Sgt. at the reserve center in Buffalo has had a couple NJP's and a court-martial, and cannot believe how far RS Buffalo has taken this. Is this what I've devoted my life to? Serving my country honorably and when I make one isolated mistake, I'm hung out to dry. I have thought about going to go to the media, send letters to the High Schools, which I already possess the addresses to, and start looking for a lawyer for the command's actions toward me in Buffalo. I will not be happy nor will I rest, whatever it takes, until I have the 1st Marine Corps Districts apology along with the command in Buffalo, and I have a DD-214 that states an Honorable discharge that I deserve as opposed to an Other than Honorable that I didn't. I also deserve to be discharged with the rank of Corporal, not Lance Corporal. Just because a unit has the right to take another rank because he is being administratively discharged, doesn't mean they have to use that right. Besides , I had already received my punishment for what I did which came out of the Court-martial, which was reduction to E-4. What is the reason for reduction to E-3? Does it serve a purpose other than to try and hurt my family and myself more? I know that I have a solid case against the command in Buffalo, and feel that I could attain a lawyer and go after the corruption that discharged myself along with two other great Marines, but I would rather not do it. I know how many bad apples are in the Marine Corps for letting this happen, and would no longer feel secure in the military. I also would love nothing more than to receive my Honorable discharge so my family and I could move on with our lives. I understand that this process takes time, but the career I want to get into frowns upon an other than honorable discharge. Because of this faulty discharge, I have lost all benefits including education assistance and unemployment. I was told by unemployment in NY and WI that because of my discharge, it shows as not working at all. I didn't spend my last six years cutting my bones to train Marines and look out for them just for a crooked command to destroy it all. Please, consider my story and circumstances. I am sorry for what I did, but did not deserve what came from it. Please do the right thing.
All I want is what I deserve for serving this great nation. I deserve an Honorable discharge. I deserve to be discharged as an E-4/Cpl.
If you have any questions about anything, regardless of what it might be, feel free to call me at (applicant telephone number deleted). The address there is (address deleted). This is my parents' home and where we will be staying until I find a job, and can support my own family unlike the Marine Corps, who cut me off and let me down.
Documentation
In addition to the service record, the Board obtained the Command Investigation into the Circumstances Surrounding the Allegations Concerning Recruiter Malpractice in the Case of Staff Sergeant C_ H. F_, Occurring at RS Buffalo, with enclosures 1, 6-10, 12, 15-16, and 19-20 dated March 14, 2001. The following additional documentation, submitted by the Applicant, was considered:
Request for Clemency
Copies from Marine Corps Separation and Retirement Manual (2 pgs)
Copy from Marine Corp Separation Manual (Summary Court-Martial)
News Article by Sergeant Major of the Marine Corps A_ L. M_ (2 pgs)
Offenses and Punishment entry (blank)
Letter from Applicant's Mother to Brigadier General C_
Reference Letter from Lt. D_
Reference Letter from GySgt P. D. M_
Letter from D_ K_ (2 pgs)
Letter from GySgt P_ D. M_
Letter from Congressman P_ R_ to M_ D_
Letter from Congressman P_ R_ to K_ D__
Letter about Command Philosophy from Major C. P. W_ (3 pgs)
Resume (2 pgs)
Copy of DD Form 214
Thank you Letter from B_ A_
Copy of Honorable Discharge Certificate
Copy of ICTFS Education Record (2 pgs)
Copy of CO's Letter (Certificate of Good Conduct)
Letter from Department of Veterans Affairs about GI Bill
Copy of Oath of Office
Letter from Applicant
Copy of Law Enforcement Officer Certificate from State of Illinois
Copy of Letter of Appreciation
Letter of Commendation from Citizen Police Chief Coordinator L_ W_
Pension Fund Membership Certificate from Round Lake Beach Police

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              950130 - 981222  HON
         Inactive: USMCR(J)                940822 - 950129  COG

 Period of Service Under Review :
Date of Enlistment: 981223               Date of Discharge: 010731

 Length of Service (years, months, days):

         Active: 02 07 08
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 74

 Highest Rank: SGT

 Final Enlisted Performance Evaluation Averages (number of marks): All enlisted performance reports were available to the Board for review.

Military Decorations: None

 Unit/Campaign/Service Awards: NMCAM, NDSM, GCM(2), LOA(3), NUC

 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 :

981223:  Reenlisted at 2D LARBN, 2D MARDIV, II MEF Camp Lejeune, NC for 4 years.

010606:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 84: Effecting the enlistment of S_ M_ on or about 010209 at RS Buffalo, RSS Tonawanda, NY.
         Charge II: violation of the UCMJ, Article 92: (2 Specifications), Spec 1: Did, wrongfully invite and escort a prospective recruit applicant into a recruiter's residence and possess and consume alcoholic beverage in 1 st MCD recruiting facility; Spec 2: Was, from about December 2000 to about January 2001, derelict in the performance of duties in that he willfully conducted excessive physical training of N_ C. A_, an overweight prospective recruit applicant, who he knew was consuming laxatives. Charge III: violation of the UCMJ, Article 125: (2 Specifications), Spec 1: Did, at or near RSS Tonawanda, NY, during about February 2001, commit sodomy with C_ A. R_; Spec 2: Did, at or near RSS Tonawanda, NY, during about February 2001, commit sodomy with J_ E_. Charge IV: violation of the UCMJ, Article 134: Did, at or near Niagara Falls, NY and Tonawanda, NY, on or about 6 March 2001, endeavor to impede an investigation into recruiter misconduct.
         Findings: to Charge I and specification thereunder, guilty. To Charge II and specifications 1 and 2 thereunder, guilty. To Charge III and specifications 1 and 2 thereunder, guilty. To Charge IV and specification thereunder, guilty.
         Sentence: Fine of $826.00 pay per month for 1 month, reduction to E-4.
         CA 010619: Sentence approved and ordered executed.
        
010712:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
010712:  Applicant advised of rights and having elected 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.

010712:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. The factual basis for this recommendation was Applicant’s plea of guilty and subsequent conviction at a Summary Court-Martial on 010606, for violating one count of Article 84, UCMJ (Effecting a Fraudulent Enlistment), two counts of Article 92, UCMJ (Failure to obey a written regulation and dereliction in the performance of his duties), two counts of Article 125, UCMJ (Sodomy), and one count of Article 134, UCMJ (Wrongfully endeavored to impede an investigation into recruiter misconduct). Enclosure (3), is the Report of Result of Trial.

010724:  SJA review determined the case sufficient in law and fact.

010724:  GCMCA [Commanding General, Marine Corps Recruit Depot/Eastern Recruiting Region, Parris Island, SC] directed the Applicant's discharge 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 010731 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. There is no inequity or impropriety in the fact that the Applicant received both a Summary Court-Martial and an administrative separation for the commission of serious offenses. For purposes of an administrative separation, a serious offense is any offense for which a dishonorable or bad-conduct discharge could be awarded. A Marine may be processed for separation for the commission of a serious military or civilian offense when: (1) the specific circumstances of the offense warrant separation, and (2) a punitive discharge would be authorized for the same or a closely related offense under the UCMJ. A military or civilian conviction is not required for discharge under this provision, but such a conviction does not preclude administrative separation after the sentence is executed. Serious offenses may also be adjudicated with non-judicial punishment. As the Applicant is aware, 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 his admission of guilt to four separate serious offenses. The Board does not consider his misconduct while on recruiting duty to be an “isolated incident.” While he may feel that a faulty chain of command and poor leadership from his superiors were factors that contributed to his actions, the record clearly reflects his 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. The Board observed that the Applicant’s statement above admits to only one incident of sexual conduct with a prospective recruit and claims the other charge of sodomy he plead guilty to never happened. However, the Applicant’s statement made on 010306 during a command investigation claims he participated in sexual conduct with two prospective recruits, the same two with which he plead guilty to sodomy at his summary court-martial. The Applicant’s conduct, which forms the primary basis for determining the character of his service falls short of that required for an honorable characterization of service. An upgrade to honorable 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. The Board considers each case on its own merits. The Applicant’s allegations that others committed similar offenses but received lesser or no punishment does not mitigate the Applicant’s misconduct. Relief denied.

 There was no impropriety found in the Applicant’s pre-trial agreement in which he waived his right to an administrative discharge board and accepted trial before a summary court-martial. The Applicant’s excellent record during his first six years on active duty does not mitigate his misconduct sufficient to warrant an upgrade to his discharge. The Board found no basis for relief based upon the Applicant’s indignation that the Marine Corps, as an organization, did not support him once his deliberate misconduct was exposed. The Applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. Normally, to permit relief, an error must have existed during the period of enlistment in question. No such error or inequity 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 hardship, 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 84, effecting fraudulent enlistment, Article 92, failure to obey a lawful general order, Article 125, sodomy, Article 134, impeding an investigation.
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 “ afls14.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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