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USMC | DRB | 2003_Marine | MD03-00709
Original file (MD03-00709.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD03-00709

Applicant’s Request
The application for discharge review was received on 20030313. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance hearing discharge review before the Board in the Washington Nation Capital Region. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter, 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 20040224. 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 HONORABLE CONDITIONS (GENERAL)/INVOL DIS (BOARD) (MISCONDUCT) SERIOUS MIL/CIV OFFENSE, authority: MARCORSEPMAN Par. 6210.6.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

1. “I D_ C. W_ am requesting that my discharge be upgraded to Honorable due to the fact that I was involved in an Special Court Martial and paid my time of punishment that was given to me by the United States Marine Corps and Naval Technical Training Center. I D_ C. W_ with extreme humbleness that this review board take I consideration of the facts that I am submitting with the Special Court Martial paperwork, be reviewed and see that I made a terrible mistake at that time as a young marine.
I was given a good conduct medal prior to me being discharge. I worked on base until the Commanding Officer Major P. L. N_ discussed my place in the service with the Marine Corps in the future due to I requested an early out from the US Marine Corps. From the time I was released from Pensacola, Florida and returned to training with the Marine Corps at Meridian Mississippi, I served the rest of that time honorably without any grievances or hostility towards the individuals staff involved in my Special Court Martial, GYSGT M_ and SGT G_ whom I worked with until my review was being investigated. Once I returned to Meridian, Mississippi the first thing I did was apologized to the above names mentioned.
In closing, I am a very conscientious man and I still apply what I have learned in the Marine Corps in civilian living. Since my separation from the Marine Corps I have entered college at the University of the District of Columbia. Also I am working as an undercover security for T.J. MAXX. I am also being considered as an Metropolitan Police officer here in Washington, DC. I am forever grateful for what the Marines have taught me and with this review whatever this board decides I am very thankful and solemnly indentured gratitude with the decision. Thank you for your valuable time and consideration.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of Convening Authority
Copy of Special Court Martial Order NO 1-94 (2 pages)
Copies of DD Form 214 (3)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                931012 - 931115  COG

 Period of Service Under Review :
Date of Enlistment: 931116               Date of Discharge: 940722

 Length of Service (years, months, days):

         Active: 00 08 07
         Inactive: None

 Age at Entry: 22                          Years Contracted: 4

Education Level: 12                        AFQT: 32

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.0 (2)                       Conduct: 3.0 (2)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, MM, Rifle Marksman Badge

 Days of Unauthorized Absence: None

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

UNDER HONORABLE CONDITIONS (GENERAL)/INVOL DIS (BOARD) (MISCONDUCT) SERIOUS MIL/CIV OFFENSE, authority: MARCORSEPMAN Par. 6210.6.

 Chronological Listing of Significant Service Events :

940408:  To confinement.

940609:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 91 (8 Specifications):
         Specification 1: Disrespectful in language on or about 940408 to GySgt M_; Specification 2: Disrespectful in language on or about 940408 to 1stSgt L_; Specification 3: Disrespectful in language on or about 940408 to Sgt G_; Specification 4: Disrespectful in deportment on or about 940408 to GySgt M_; Specification 5: Assault-bumping into arms with his body on or about 940408 to GySgt M_; Specification 6: Disobey lawful order on or about 940408 from GySgt M_; Specification 7: Disobey lawful order on or about 940408 from GySgt M_; Specification 7: Disobey lawful order on or about 940408 from GySgt M_; Specification 8: Disobey lawful order on or about 940408 from Sgt G_.
         Charge II: violation of the UCMJ, Article 134: Communicate a threat to injure on or about 940408 to GySgt M_.
         Findings: to Charge I and specifications 1, 3, 4, 6, 7 and 8 thereunder, guilty. To specifications 2 and 5 under Charge I, withdrawn. To Charge II and specification thereunder, withdrawn.
         Sentence: Fine of $500.00 pay per month for 2 months, confinement for 75 days, reduction to E-1.
         CA 940630: Sentence approved and ordered executed.
940610:  From confinement.

 940614:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
940617:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
940623:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to the commission of a serious offense, that the misconduct warranted separation, and recommended discharge under honorable conditions (general).

940705:  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 your disregard for written regulations and policy established by the Marine Corps on conduct.

940718:  SJA review determined the case sufficient in law and fact.

940718:  GCMCA [Commander, Marine Corps Recruit Depot/Eastern Recruiting Region, Parris Island] directed the Applicant's discharge under honorable conditions (general) 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 19940722 under honorable conditions (general) 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. The fact that the Applicant served his punishment ordered as a result of a special court-martial does not provide a basis for relief to his characterization of service. A characterization of service of under honorable conditions (general) is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. T he Applicant’s service was marred by one special court-martial for the commission of 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 is inappropriate. Relief denied.

The Applicant’s discharge characterization 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, to enhance employment opportunities, or for 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 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 91, disrespect to a NCO and SNCO.
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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