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USMC | DRB | 2002_Marine | MD02-00735
Original file (MD02-00735.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
ex-Pvt, USMC
Docket No. MD02-00735

Applicant’s Request
The application for discharge review, received 020425, 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 030206. 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, as submitted

1. My undesirable discharge was inequitable because it was based on a charge, coupled with 2 others, that was without merit. See attached form outlining this issue.

Gentlemen:
I, (Applicant), hereby request a review and change in the type of discharge received from the United States Marine Corps based on the following statement and the attached documents. I served between Jan. 02, 1990 and October 02, 1992, permanently stationed at MCAS Yuma, AZ under GYSGT P_ in the Instructional Television Department of H&HS Squadron. I received two NJP's for Unauthorized Absence on two different occasions, but for the same offense - missing the bus to the rifle range. On both of those occasions, I missed the bus by 10 and 15 minutes, each time trying to find a way to the rifle range using alternate means, but it would have been pointless since Marine's are not allowed to transport weapons. On both of these occasions, I reported directly back to my duty office. On the third offense, working under SGT G_, I was charged with failing to carry out a direct order. This is the charge that I believe was unwarranted and without merit. My MOS is 4671, Audio/Visual Production. It is my duty to produce, videotape and edit various training videos, ceremonies, parades, etc. On this particular task, I was asked to edit a ceremony that the department had videotaped. I had edited a few of these in the past with assistance from my NCO'S. Upon completing the task, it was reviewed by both SGT G_ and another NCO, Sgt. M_. After their review, they told me that it should not have been edited the way it was done, and charged me with failing to carry out a direct order. It should be noted that a certain level of creativity was allowed in the department, and that the specifics of what was wrong with the videotape were never made known to me. I believe I was set up to fail. At the same time, I was also charged with insubordination and threatening my superior (SGT G_), which were both dropped for lack of evidence because it never actually happened. I believe that I was charged with this last offense as a means to get me discharged from the Marine Corps. I believe that there was a serious personality conflict between Sgt G_, and myself and that my superior NCOIC recognized this and transferred me to another department. I had no other problems after that point. I came from a family of Marines, and it was disappointing to me that my career was cut short. I take full responsibility for my two UA charges. However, I believe that I could have fulfilled my obligation to the Marine Corps had I not been charged with the third offense. If my request is granted, I would like to explore the possibility of returning to the Marine Reserves and completing my service time. Currently, my re-enlistment code is RE-4 and my discharge is General under Honorable conditions. I respectfully request an upgrade to both to allow me to fulfill my goals. Attached are several Letters of Appreciation, and a character statement. Respectfully submitted,
                                                                (Applicant)


 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Statement of character dated June 9, 1992
Letter of appreciation dated March 24, 1992
Letter of appreciation dated March 14, 1992
Letter of appreciation dated February 12, 1991
Letter of appreciation dated December 13, 1990
Letter of appreciation dated March 21, 1991
Letter of appreciation dated June 1, 1992
Letter of appreciation dated November 26, 1990
Letter of appreciation dated March 1, 1991

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                891130 - 900101  COG

 Period of Service Under Review :
Date of Enlistment: 900102               Date of Discharge: 921002

 Length of Service (years, months, days):

         Active: 02 09 01
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 11                        AFQT: 76

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.1 (9)                       Conduct: 3.5 (9)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, Certificate of Appreciation, Letter of Appreciation (7)

 Days of Unauthorized Absence: (1) 911205

 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 :

911125:  Counseled for deficiencies in performance and conduct (Substandard conduct; being at appointed place of duty at the assigned time). Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
911220:  NJP for violation of UCMJ, Article 86:
 Specification: Unauthorized absence from 0545 on 911205 until 0545 on 911206 (1 day).
Awarded extra duties for 45 days, reduction to PFC. Not appealed.
920430:  NJP for violation of UCMJ, Article 86:
 Specification: Absent from appointed place of duty from 0530 on 920421, to wit: rifle range.
Awarded forfeiture of $372.00 per month for 1 month, restriction and extra duties for 45 days, reduction to Pvt. Reduction suspended for 6 months. Not appealed.
920505:  Counseled for deficiencies in performance and conduct (Failure to conform to military regulations and orders, specifically your misconduct documented on your page 11 and your nonjudicial punishments on your page 12s). Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
920521:  Vacate suspension of reduction to Pvt imposed at NJP on 920430.

 920529:  NJP for violation of UCMJ, Article 91:
 Specification: Disrespectful in language toward a noncommissioned officer.
Violation of UCMJ, Article 92 (2 specs):
Specification 1: Failed to obey a lawful order issued by a noncommissioned officer.
Specification 2: Failed to obey a lawful order issued by a noncommissioned officer.
Awarded forfeiture of $392.00 per month for 1 month, restriction for 45 days. Not appealed.
920605:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions. CO's comments: "The factual basis for this recommendation was your minor disciplinary infractions as evidenced by your page 11 entries and office hours on your page 12."
920608:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
920721:  An Administrative Discharge Board, based upon preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to minor disciplinary infractions and a pattern of misconduct and that the misconduct warranted separation. The Board recommended a discharge under honorable conditions (general).
920827:  Commanding officer concurred with findings of Administrative Discharge Board and recommended a discharge under honorable conditions (general) ; no reason for discharge was specified to the GCMCA.

920915:  SJA review determined the case sufficient in law and fact.

920916:  GCMCA (Commander, Marine Corps Air Bases, Western Area) 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 921002 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: The Applicant contends that his discharge was inequitable because it was based on non-judicial actions that were without merit. The NDRB found credible evidence of misconduct in the service records of the Applicant. This misconduct did warrant processing for separation as initiated by the Applicant's command. The nonjudicial proceedings, the findings by the Administrative Discharge Board, and the review by legal authority all indicate the propriety and equity of the discharge process. The Applicant’s record of service and accomplishments , to include his numerous letters of appreciation, does not sufficiently mitigate his misconduct to warrant an upgrade in his characterization of service. Relief denied.

The Applicant's discharge characterization accurately reflects his service to his country. In order to permit relief, there must be evidence of impropriety, inequity, or procedural irregularities in the Applicant's discharge. No such evidence was found. The Board recognizes that serving in the Marine Corps is very challenging but 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. While the NDRB respects the fact that the Applicant tried, his service is equitably characterized as being performed under honorable conditions (general) . Relief is 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 P1900.16D), 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 [e.g., Article 86, unauthorized absence for more than 30 days].
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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