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USMC | DRB | 2003_Marine | MD03-00964
Original file (MD03-00964.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD03-00964

Applicant’s Request
The application for discharge review was received on 20030507. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge review. The Applicant listed the Disabled American Veterans as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040408. 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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, 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 regret referring to my uncle G_ G_ R_ as my brother and apologize for my prolonged misconduct under the stress of mourning. My uncle is (was) 4 years my junior and we were raised as brothers this is what led to my confusion and troubles. Submit copy of obituary

2. Since the Marine Corp I served for 3 years in the Public Affairs Office at Camp Lejeune N.C. as a civilian sports editor under Major J_ 1998-99. I now work for the Miami Herald and recently graduated college with a B.F.A. I now aim to teach art and further my education with a M.F.A. Submit diploma

3. References from Barry University faculty (for teaching post)

4. References from current employer (for teaching post)”

Additional issues submitted by Applicant’s representative (Disabled American Veterans):

 5. “Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current General Under Honorable Conditions to Honorable.

The FSM served on active service from April 17, 1992 to April 16, 1996 at which time he was discharged due to Misconduct.

The FSM has submitted documentation in support of his claim, to include letters of recommendation for a full time Teachers position at college level, degree completion certificate and five point veteran's letter from the Department of Veterans Affairs.

We as the representative, ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the applicant submits to the Board's discretionary authority, under SECNAVIST 5420.174C.

We ask for the Board's careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the applicant.

Respectfully,”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Degree of Bachelor of Fine Arts with a major in Art, dated December 14, 2002
Character reference from Associate Professor of Art, Barry University, dated February 11, 2003
Character reference from Chair and Professor of Art History, Barry University, dated February 28, 2003
Applicant’s résumé Letter from Department of Veterans Affairs, dated January 10, 2000
Letter from Professor, The President of Biennale, undated

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                920210 - 920317  COG

 Period of Service Under Review :
Date of Enlistment: 920318               Date of Discharge: 960416

 Length of Service (years, months, days):

         Active: 04 00 29         Does not exclude lost time
         Inactive: None

 Age at Entry: 26                          Years Contracted: 4

 Education Level: 12                        AFQT: 81

 Highest Rank: Cpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.1 (12)                      Conduct: 3.9 (12)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: 6

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.6.

 Chronological Listing of Significant Service Events :

940508:  Counseled for deficiencies in performance and conduct. [Failure to be at the appointed place of duty on time from 0800 to 0930 on 940507. This was not the first time in the last 30 days when you did not show up at the proper place and time for work. Relying on someone else to provide you a ride to work or missing that ride due to your poor time management is not an acceptable excuse.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940526:  Applicant’s statement of rebuttal.

 940906:  Counseled for deficiencies in performance and conduct. [Failure to report to your appointed place of duty at the prescribed time. You have been unofficially counseled on 940630, 940707, 940712 for being late for work and physical training. Be advised that, with proper preparation the night before and adequate allotment of time to get to work in the morning, you can correct these deficiencies, if you are unsure of where you are supposed to be you are advised to contact your NCOIC, SNCOIC or OIC for instruction. In the event that you can not make it to your appointed place of duty for reasons beyond your control then you are advised to contact the same.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

941017:  Counseled for deficiencies in performance and conduct. [Financial mismanagement, specifically writing bad checks which you do not have the money to cover.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950208:  To pre-trial confinement.

950303:  From confinement, to duty (23 days confinement).

 950303:  NJP for violation of UCMJ, Article 86 (18 specs):
 Specification 1: Unauthorized absence 1200, 941227 to 0630, 941228.
Specification 2: Unauthorized absence from 1200, 950103 to 0551, 950108 (5 days).
Specification 3 –10: Failure to go to section PT at 0630 between 940829 and 941207.
Specification 11-14: Failure to go to restriction muster w/BnOOD.
Violation of UCMJ, Article 90 (3 specs):
Specification 1-3: Failure to obey a Superior Commissioned Officer.
Violation of UCMJ, Article 91:
Specification: Willfully disobeyed a noncommissioned officer.
Violation of UCMJ, Article 107:
Specification: Make a false official statement on 940928.
Awarded forfeiture of $524.00 per month for 1 month, reduction to LCpl. Forfeiture suspended for 6 months. Not appealed.
950308:  Counseled for deficiencies in performance and conduct. [Frequent violations of the UCMJ, specifically Articles 86, 90, and 91.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950525:  Vacate suspended forfeiture awarded at CO’s NJP dated 950303.

 950602:  NJP for violation of UCMJ, Article 123:
 Specification: With intent to defraud, falsely make in its entirety the signature of 2 nd Lt P_, to wit: on a Privacy Act Statement.
         Awarded forfeiture of $478 per month for 2 months, restriction and extra duty for 45 days, reduction to PFC. Forfeiture of $478 for 1 month and restriction and extra duty for 45 days suspended for 6 months. Not appealed.
950607:  Applicant appealed NJP dated 950602.

 950711:  Warrant issued for Applicant’s arrest in the County of Onslow, State of NC on charges of obtaining property by false pretenses. [Extracted from Notification of Separation Proceedings dated 960130.]

950928:  Counseled for deficiencies in performance and conduct. [Failure to be at your appointed place of duty, to wit: failure to be at HQSVCCo physical training and failure to be at HQSVCCo, Bn S-4 at the appointed time.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960130:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions and commission of a serious offense.
960201:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
960202:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions and commission of a serious offense. The factual basis for this recommendation was Applicant’s constant failure to adhere to counseling, his numerous nonjudicial punishments and his being arrested by civilian authorities in Onslow County, NC, all which were listed in the basic correspondence.

960226:  Applicant’s representative request for exculpatory polygraph examination be administered to applicant. Applicant’s representative also requested the government provide three documents (known handwriting samples of Applicant’s) for review by a handwriting expert.
960311:  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 general (under honorable conditions).

960410:  SJA review determined the case sufficient in law and fact.

960410:  GCMCA [Commander, II Marine Expeditionary Force, MarForLant] directed the Applicant's discharge general (under 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 19960416 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. 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 award of nonjudicial punishment (NJP) on two occasions and adverse counseling entries on other occasions. The Applicant’s conduct evaluation average, 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 is inappropriate. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

Issues 2-5. 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 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. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that 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 may be provided to receive consideration for relief, based on post-service conduct. The Applicant’s evidence of post-service conduct was found not to mitigate the offenses for which he was discharged. 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 18 Aug 95 until 30 Jan 97).

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 90, disobedience to a commissioned officer; Article 91, disobedience to a noncommissioned officer; Article 107, lying; and Article 123, forgery.
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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