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USMC | DRB | 2003_Marine | MD03-00203
Original file (MD03-00203.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD03-00203

Applicant’s Request
The application for discharge review, received 20021113, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The Applicant requested a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20031017. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Conduct triable by courts-martial (request for discharge for the good of the service), authority: MARCORSEPMAN Par. 6419.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


 Issues, as submitted

“1. Hello I am H_ R T_ wife of Gulf War Veteran W_ F T_ (Applicant). I am writing and filling out this application for W_ (Applicant) to have his discharge reviewed and reversed. W_ (Applicant) has struggled with the decisions he made back in 1991-1992 too go Absent without leave. Little did he know that he had been suffering from PTSD (POst Traumatic Stress Disorder). W_ (Applicant) was shot at after returning home from the Gulf. He tried too stop a fight that was going on and the police report states this. There were 5-7 rounds fired at him. W_ (Applicant)s PTSD from the Gulf war among many other health problems he is having related to his service in the Gulf. W_ (Applicant) has always proclaimed after being shot at during the fight and also the things he saw in the Gulf war that he was Scared. He has lived with this guilt for the last 11 years. He still and I fear he will always feel guilty about going absent. W_ (Applicant) is 100% service connected service related problems. He stated too me that he wishes he could change it all but knows he can’t. W_ (Applicant) still lives and breaths the Marine Corps still holds its values and always speaks highly of the Marine Corps. He also states that maybe he wasn’t ready too be in the service, but then he also says he doesnt know why or what made him go Absent. He says all the time that “I was scared.” I hope you can find it in best interest too reverse the decision of Other Than Honorable. W_ (Applicant) isn’t asking too have a Honorable rating but a General Under Honorable Conditions. He did do his job while in the Marine Corps and he did go and serve his country in the Gulf War. The man I know is one of caring, compassion and honor. Even though he was absent without leave he did serve his country honorably while he was in the Marine Corps. I hope you can find it after 11 years too reverse the decision. Again I am writing this for my husband due too his health conditions. he is unable too type this form. If he was able to he would be there for the hearing and also fill this form out hiself. I am W_ (Applicant)s power of attorney. I ask too please have the decision mailed too our home address at: … PH … Thank you for taking the time to consider this request.

H_ T_ for W_ T_ (signed by Applicant’s spouse).” classic

2. Applicant’s handwritten letter: “ Discharge Review Board; To Whom it may concern: I just wanted to say I was wrong for going UA and I am sorry. I hope you can read this. I am on a lot of medication for my PTSD. I hope you will consider my request. I don’t remember a lot from back then but I do know I feel badly all my life for going UA. I feel I discredited my name and Corps. I just hope you can forgive my mistake. Thank You. W_ T_ (Signed by the Applicant)”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Englewood Police General Case Report, 91-14733, dtd Jun 30, 1991 (2 pages)
Attorney General, Evidence Submission Sheet, BCI Lab Number 91-12582, dtd July 1, 1991
VA Puget Sound HCS, WA, Medical Record, dtd Feb 25, 1997 (3 pages)
Confidential Mental Health Clinic Summary, dtd Aug 8, 2001
Statement/Letter from Applicant’s Spouse (H_ R. T_) dtd Dec 8, 2002 (2 pages)
Copy of DD Form 214
Newspaper Article from 1997 (3 pages – 2 are duplicates)
Award discussion e-mail, dtd Aug 2, 2002
Award notification letter, dtd Aug 13, 2002
 Citation for Meritorious Service from Dept of Ohio, American Legion, dtd Aug 10, 2002
 Letter acknowledging Completion, American Legion Extension Institute, dtd Oct 18, 2002
Certificate of Completion, American Legion, dtd Oct 18, 2002
Letter from K_ R_, undtd
Finale Decree of Adoption dtd June 30, 2000
Newspaper article from West Milton Record about Veterans Day 2002
Certificate of Appreciation, American Legion, Dept of Ohio
10 Thank you letters from student at Milton Union Jr. HS

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                890119 - 890320  COG

 Period of Service Under Review :
Date of Enlistment: 890321               Date of Discharge: 910917

 Length of Service (years, months, days):

         Active: 02 05 27 (Doesn’t exclude lost/confinement time.)
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12 (Didn’t graduate – insufficient credits)
AFQT: 31

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.7*                          Conduct: 3.3*

 Military Decorations: None

 Unit/Campaign/Service Awards: CoA, SSDR(w/1 star), SWASM (w/2 stars), NDSM, Rifle Marksmanship Badge

 Days of Unauthorized Absence: 48 (9105 – 910716)


* Extracted from SJA ltr of Sep 6, 1991



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

UNDER OTHER THAN HONORABLE CONDITIONS/Conduct triable by courts-martial (request for discharge for the good of the service), authority: MARCORSEPMAN Par. 6419.

 Chronological Listing of Significant Service Events :

900430:  Counseled for deficiencies in performance and conduct [contemptuous action towards authority]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

900530:  Counseled for deficiencies in performance and conduct [financial irresponsibilities, judgment, and integrity]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

900618:  NJP for violation of UCMJ, Article 91: At Gimburu Trng Area, 3dFSSG, 1100, 10May90, willfully disobeyed order of GySgt W_ to remove his radio from the cab of his vehicle.
 Awarded forfeiture of $189.00 per month for 1 month, restriction for 14 days. Not appealed.
900717:  Acknowledged eligibility but not recommended for promotion to LCPL for the month of June for pending NJP.
901023:  NJP for violation of UCMJ, Article 134: Between 04Jun90 and 22Oct90 cashed insufficient “funds” personal checks at OWAX, and MCB Clubs System totaling $550.00.
 Awarded forfeiture of $189.00 per month for 1 month (suspended for 6 months), restriction and extra duty for 7 days. Not appealed.
910319:  NJP imposed and suspended on 901023 for period of 6 months is vacated and punishment ordered executed.

910426:  NJP for violation of UCMJ, Article 92: On 29Jan91 at approx 1500 at the DSC in the vicinity of Kibrit, Saudi Arabia, LCpl T_ (Applicant) was in violation of MCO P1020.34E in that he was wearing a red T-shirt in uniform; violation of UCMJ, Article 92: On 7 Mar 91 at approx 1100 in the Motor Pool aborad Camp 5, Jubail, Saudi Arabia, LCpl T_ (Applicant) was in violation of MCO P1020.34E in that he was unshaven; violation of UCMJ, Article 91: On 6Mar91 in the Motor Pool aboard Camp 5, Jubail, Saudi Arabia, was disrespectful in language toward CWO O_, in that he used the word “shit”; and that he was disrespectful in conduct toward CWO O_ in his deportment and body language and that used a contemptuous tone toward CWO O_; violation of UCMJ, Article 134: On 14MAR91 in the Motor Transport Barracks about Camp 5, Jubail, Saudi Arabia, LCpl T_ (Applicant) was in possession of mail which was not his own.
 Awarded reduction to E-2, forfeiture of $150.00 per month for 2 months (suspended for 6 months), restriction and extra duty for 30 days (suspended for 6 months). Not appealed.
910628:  Applicant declared a deserter on 910628 having been an unauthorized absentee since 0731, 910528 from HqCo, 9 th CommBn, 1 st SRIG, I MEF, FMF, CamPen, CA.

910716:  Applicant apprehended by military authorities on 910716 (0945) at MCB, CamPen, CA.
910717:  Placed in pre-trial confinement.

 910829:  Applicant, having consulted with counsel certified under UCMJ Art 27b, requested discharge for the good of the service to escape trial by court- martial. In the request the Applicant noted that his counsel had fully explained the elements of the offenses for which he was charged and that he understood the elements of the offenses. He further certified a complete understanding of the negative consequences of his actions and that characterization of service would be under other honorable conditions. The Applicant admitted guilt to the following violations of the UCMJ, Article 86: UA from 910528 to 910716.

910906:  SJA review determined the case sufficient in law and fact.

910912:  GCMCA [CG, I Marine Expeditionary Force] advised the Commandant of the Marine Corps that Applicant was approved for discharge in lieu of trial by court-martial and directed discharge under other than honorable conditions by reason of conduct triable by courts-martial.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

 Discussion

The Applicant was discharged on 19910917 under other than honorable conditions in lieu of trial by court-martial (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: 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. While he may feel his parent’s marital problems and his fiancée’s difficulties while he was absent (deployed) were contributing factors, they do not mitigate the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service. His service record is marred by numerous page 11 counseling entries for deficiencies in performance and conduct and the award of non-judicial punishment (NJP) on two separate occasions thereby substantiating his misconduct and demonstrating he was unsuitable for further service. It must be noted that most Marines serve honorably and therefore earn honorable discharges. In fairness to those Marines, commanders and separation authorities are tasked to ensure that the undeserving receive no higher characterization than is due. An upgrade to General/Under Honorable Conditions would be inappropriate. Relief denied.

Issue 2: In a statement (Request for Separation in lieu of Trial by Court-Martial) written in his own hand and signed on 29 Aug 91, the Applicant asked the Commanding General, I Marine Expeditionary Force: “Sir, Please approve my request for a good of the Service discharge.” The Applicant made this request after “consulting with a qualified lawyer’ and acknowledging “an understanding of the offense charged” and that “If (his) request (was) approved, the characterization of service authorized (would be) Under Other Than Honorable Conditions.” The NDRB recognizes serving in the Marine Corps is very challenging. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country. It must be noted, most Marines serve honorably and therefore earn honorable discharges. The NDRB respects the fact the Applicant served during a period of conflict, but his overall service is equitably characterized as being performed under other than honorable conditions. Relief is 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 inequity must have existed during the period of service in question. No such error or inequity occurred during the Applicant’s tenure. 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. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge. Evidence of continuing educational pursuits, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that should have been provided to receive consideration for relief, based on post-service conduct. The Applicant provided insufficient evidence of post-service conduct. Relief not warranted.

         The applicant is reminded that he is eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge. The applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Representation at personal appearance hearing is recommended but not required.


Pertinent Regulation/Law (at time of discharge)

 A. Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL, 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 86, unauthorized absence for more than 30 days; Article 91, insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer; Article 92, failure to obey order or regulation; Article 134, uttering worthless checks and possession of another’s mail.

 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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