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USMC | DRB | 2002_Marine | MD02-00641
Original file (MD02-00641.rtf) Auto-classification: Denied


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


ex-LCPL, USMC
Docket No. MD02-00641

Applicant’s Request
The application for discharge review, received 020403, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The Applicant requested a personal appearance hearing discharge review before a traveling panel closest to Grand Rapids, MI. 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 hearings are held in the Washington, D.C. 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 030116. 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, as submitted

1. I feel that my military record prior to [this reason for discharge] was above question. I have awards and moved as fast as possible. I always gave my all. I feel my past record should be taken into consideration and reviewed. This one incident, after 6 yrs of service, should not count for everything. My discharge should not ruin the rest of my life.


Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copies of DD Form 214 (2)
Copy of DD Form 215
 Copies of Certificates of Completion Letters (9)
Copy of Certificate of Completion SNCO Career Nonresident Program (Personnel Administration)
Copies of Certificates of Completion for SNCO Career Nonresident Program (Drills, Ceremonies, Uniforms Regulations, and Inspection) (2)
Copies of Certificates of Completion for SNCO Career Nonresident Program (Tactical Communication) (2)
Copies of Certificates of Completion for SNCO Career Nonresident Program (Personnel Administration) (2)
Copy of Certificate of Completion for SNCO Career Nonresident Program (Marine Corps History and Traditions)
Copies of Certificates of Completion for SNCO Career Nonresident Program (Leadership) (2)
Copy of Certificate of Completion for SNCO Career Nonresident Program (Military Justice)
Copy of Certificate of Completion for SNCO Career Nonresident Program (Military Training)
Copy of Certificate of Completion for SNCO Career Nonresident Program (Operations)
Copy of Letter of Recommendation for Lateral Move
Copy of Letter of Recommendation for BOOST Program

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              920407 - 960406  HON
          Inactive: USMCR(J)                910610 - 920406  COG

 Period of Service Under Review :
Date of Enlistment: 960407               Date of Discharge: 980414

 Length of Service (years, months, days):
         Active: 02 00 07
          Inactive: None
Age at Entry: 22                          Years Contracted: 4

Education Level: 12                        AFQT: 85
Highest Rank: SGT

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.5 (7)                       Conduct: 4.5 (7)

Some Fitness Reports were available for review.
Military Decorations: None

 Unit/Campaign/Service Awards: Pistol Sharpshooter Badge, NDSM, GCM, SSDR, COC, Rifle Expert (3 rd )
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 :

980128:  Summary Court-Martial.
          Charge I: violation of the UCMJ, Article 90;
          Specification: Disobey a lawful command from 1stLt R_ to refrain from making ethnic/racial jokes.
         Charge II: violation of the UCMJ, Article 92 (3 Specifications), Spec 1: Did on or about 971019, made ethnic/racial jokes toward PFC P_ in the presence of PFC P_, PFC G_, and PFC W_; Spec 2: Did on or about 971017, made ethnic/racial jokes in the presence of PFC P_; Spec 3: Did on or about 971022, made ethnic/racial jokes in the presence of LCpl B_ and LCpl S_.
 Finding: to Charge I and the specification thereunder, guilty. To Charge II and specification 1 and 2 thereunder, guilty, to specification 3 thereunder, not guilty.
          Sentence: Forfeiture of $500.00 pay per month for 1 month, BN restriction to the limits of 2/3 for 30 days, reduced to E-4.
          CA action 980204: Sentence approved and ordered executed.
98xxxx:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
980321:  Applicant advised of his 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.
98xxxx:  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 violation of the UCMJ to include disobeying a superior commissioned officer and dereliction in the performance of duties by making ethnic racial jokes (two offenses).

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

 980402:  GCMCA [Commanding General, MCB Hawaii] 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 980414 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 during his second enlistment was marred by award of a Summary Court-Martial for violation of UCMJ Articles 90 and 92. These violations are considered serious offenses. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his 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. An upgrade to honorable would be inappropriate. Relief denied.
The Applicant’s discharge characterization, when corrected as recommended on page 1, accurately reflects his service to his country. Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity is evident 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 90, disobeying a lawful order of a commissioned officer, 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 “ 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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