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USMC | DRB | 2002_Marine | MD02-00926
Original file (MD02-00926.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD02-00926

Applicant’s Request
The application for discharge review, received 020611, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The Applicant requested a personal appearance hearing before the board in the Washington National Capital Region. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter to the Applicant, the Applicant 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 030319. 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. 6210.3.

.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted
1. T he reason why I would like my change of service upgraded is for a few legal
reasons

My Pro and Cons marks call for a General Under Honorable Conditions
(If one could look at my pro and cons they clearly state General Under honorable) this was my attorney's main argument at my review board.

When the General signed my OTH discharge package using my SERVICE RECORD BOOK for a decision maker. Most of the entries where false, Most of the entry's where entered guilty on accident by the admin (when I was found not guilty. Such as disrespect to an NCO and U.A. it was stated in the S.R.B. that I was found guilty This is key because at the begging of my S.R.B. I was Bad and given another chance to correct my conduct and I had changed after my punishments were given. And the General looked at my S.R.B. all the charges look as if they keep recurring causing pattern of misconduct to form in his mind, out casting me.

 2. A few non legal points I would like to bring up is.

I was throne in the brig unfairly and later relished by the warden for wrongful
imprisonment on part of my command. And it does not appear in my S.R.B .

I was charged UA because I took up for another Marine that was being hazed and reported. And the next time I was a min late I was charge UA

I was wrongfully Court Marshaled by a witness testimony that was not even at the Scene of my false changes and was charged by his testimony and sent to the brig all the Marines that issued statement was discharge out the Core so they Made up a witness. And did not pick up my rebuttal till I served my time in the brig.

Why would a Marine with so many NJP be left In the Fleet taken down by rank and brought back up the rank so fast? Are a Marine that just got out the Brig be given a NCO billet such as Training NCO.

I tried to request mast to the commandant to stay in the Core and A person from the head Quarters of the Marine Core talked to the request mast officer for the general and spoke to my request mast officer for 30 min and I over heard him saying people can be relieved if this gets out. To the commandant. The next thing I know I was being rushed out the core under a O.T.H.

Sir, Madam True Enough I have paid for my Misconduct and so has my family. I have did the best I can with the broken pieces of my discharge I have stayed out of trouble and made up for may bad actions. My life is now decanted to helping others. With the gift of a General under Honorable proves me to be a changed man. Doing Good things. And I will use it to fly higher and help more souls. I ask that this bad mark of my past be lifted. The new discharge will not say honorable it will say a man with limitations that is trying. Not one that has the charge of a substance abuser and nobody. With this upgrade I can Get a Good Job and find a home or apartment for my family. I fill the last two years have been my punishment along with the legal mistakes made by my command I be upgraded to General Under Hornible.

Thank you for Your Time
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from Applicant dated May 14, 2002
Two pages from Applicant's service record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                970417 - 980206  COG

 Period of Service Under Review :
Date of Enlistment: 980207               Date of Discharge: 000814

 Length of Service (years, months, days):

         Active: 02 06 08
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 33

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (6)                       Conduct: 4.0 (6)

 Military Decorations: None

 Unit/Campaign/Service Awards: Certificate of Commendation, SSDR

 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. 6210.3.

 Chronological Listing of Significant Service Events :

980506:  Counseled for deficiencies in performance and conduct. [Disobeying a lawful order, in that Applicant did fire blanks within five feet of another Marine. His actions could have resulted in serious injury to a fellow Marine. Disobedience of a lawful order is punishable under the Uniform Code of Military Justice.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
990210:  NJP for violation of UCMJ, Article 89:
 Specification: Treat Capt with disrespect on 0545, 990129.
Violation of UCMJ, Article 92:
Specification: Failure to obey the proper speed limit on the Okinawa Highway in excess of 80 kph.
Awarded forfeiture of $537.00 per month for 1 month, restriction and extra duties for 30 days, reduction to PFC. Appealed 990210. Appeal denied 990324.
990401:  NJP for violation of UCMJ, Article 86 (2 specs):
 Specification 1: Failure to report to his appointed place of duty on 0330, 990322, to wit: Chowhall formation.
Specification 2: Failure to report to his appointed place of duty on 0430, 990323, to wit: Chowhall formation.
Awarded forfeiture of $537.00 per month for 2 months, restriction and extra duties for 45 days. Not appealed.
990406:  Counseled for deficiencies in performance and conduct. [Unprofessional conduct and disrespect towards the United States Marine Corps. Specifically, refusal to carry and sign the Core Values card. When given the Core Values card, SNM stated "I do not believe in this card, I don't believe in the Marine Corps," and then threw the card in the trash can, after being ordered to sign it. This conduct is prejudical to good order and discipline, and will not be tolerated.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
990429:  NJP for violation of UCMJ, Article 86 (2 specs):
 Specification 1: Failed to report to his appointed place of duty on 0530, 990402.
Specification 2: Absented himself from his appointed place of duty on 0800-1500, 990412.
Violation of UCMJ, Article 92 (2 specs):
Specification 1: Disobey order from GySgt by refusing to get off the deck twice and stating that he was done on 0630, 990405.
Specification 2: Disobey a lawful order by not reporting in for his 0700 restriction on 0700, 990410.
Awarded Extra duties for 30 days, reduction to Pvt. Reduction suspended for 6 months. Not appealed.
991103:  NJP for violation of UCMJ, Article 91:
 Specification: Show disrespect in language towards Cpl on 0800, 991025 by saying to him "Fuck that, I ain't cleaning no fucking laundry room," and "You can have my paperwork ready."
Violation of UCMJ, Article 92:
Specification: Disobey a lawful order on 1800, 991025 by not cleaning the laundry room.
Awarded Correctional Custody for 7 days. Not appealed.
991105:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 91.
         Specification: Disrespectful in language and deportment toward a NCO by saying to him that he was not going to do this shit in a rude deportment.
         Violation of the UCMJ, Article 92 (2 specs):
         Specification 1: Disobey a lawful order issued by Cpl to sound off when spoken to and put forth an effort.
         Specification 2: Disobey a lawful order issued by Capt to complete a seven day motivational training period at Correctional Custody Unit.
         Finding: to Charge I and the specification thereunder, guilty.
         Sentence: Forfeiture of $639.00, confinement at hard labor for 30 days.
         CA action 991223: Sentence approved and ordered executed.

000215:  Vacate suspended reduction to Pvt awarded at CO's NJP dated 990429.

000518:  Counseled for deficiencies in performance and conduct. [Violation of Article 86 on numerous occasions to include: On 000406, left at 0900 and did not return until 1100, on 000512, was not at the appointed place of duty at 0600 and called in at 0610, on 000516 was UA from 1230 until 1320, and on 000517, from 0600 until 0615.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
000526:  NJP for violation of UCMJ, Article 86:
 Specification: Unauthorized absence on 0545, 000524.
Violation of UCMJ, Article 92:
Specification: Disrespectful by yelling when reporting to Sgt.
Violation of UCMJ, Article 107:
Specification: Make a false official statement on 000523, to wit: stating he had permission from GySgt and Cpl to go to town to DMV.
Awarded forfeiture of $563.00 per month for 2 months, restriction and extra duties for 45 days. Forfeiture for 1 month suspended for 6 months. Not appealed.
000605:  Applicants rebuttal to a page 11.

 000614:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
000614:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
000614:  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 based upon SNM's adverse counselings dated 980506, 990406, 000518, NJP's dated 990210, 990401, 990429, 991103, 000526, and SCM dated 991105.

000620:  Counseled for deficiencies in performance and conduct. [On 000618 was in violation of Articles 91 and 92 of the UCMJ in that, while Cpl was correcting Applicant for being in improper uniform by not wearing his cover outdoors he got irate and swore at the DNCO. He also violated BnO P11101.5D in that he had his POV parked on the grass at the barracks. On 000619 he was in violation of Article 92 of the UCMJ in that he broke restriction by having his wife pick him up at the barracks and bring him to work, knowing that he was not allowed visitors except on Sundays. Furthermore his wife has only a learners permit and she can not drive on base without a licensed driver.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. Applicant choose to make a statement. Applicant did not make a statement.
000714:  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.

000806:  SJA review determined the case sufficient in law and fact.

000807:  GCMCA [Commander, 2d Force Service Support Group] 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 000814 under other than honorable conditions 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).

Issues 1 and 2. A Marine’s average proficiency and conduct markings are not the sole determinant of his characterization of service. 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 award of nonjudicial punishment (NJP) on five occasions, one summary court-martial, and adverse counseling entries on other occasions. Relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. The Board found no indication other than that noted below that his record of punishment was erroneous. 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 would be inappropriate. Relief denied.

The Board found that the Applicant’s suspended reduction to Private awarded at NJP dated 990429 was improperly revoked on 000215. However, this error did not prejudice the propriety and equity of his administrative separation proceedings. Therefore no relief is granted. The Applicant may contact the Board for Correction of Naval Records, 2 Navy Annex, Washington, D.C. 20370-5100 concerning this error.

The Applicant’s discharge characterization accurately reflects his service to his country. 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 Jan 97 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 86, unauthorized absence; Article 91, disrespect to a NCO; Article 92, failure to obey a lawful general order; Article 107, false official statement.
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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