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USMC | DRB | 2003_Marine | MD03-01201
Original file (MD03-01201.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD03-01201

Applicant’s Request
The application for discharge review was received on 20030707. The Applicant requested the characterization of service received at the time of discharge be changed to honorable. Additionally, the Applicant requested a personal appearance hearing before the board in the Washington National Capital Region. The Applicant listed the Disabled American Veterans as the 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 20040430. 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. “My discharge was improper because I was tried at a General Court Martial and was convicted and punished appropriately. I was reduced from a Sergeant/E-5 to a PFC/E-2 and given a 60 day restriction to Henderson Hall. And that was from a jury pool of 2 Colonels, 1 Lt. Colonel, 1 Master Gunnery Sergeant and 1 Staff Sergeant. I believed that the punishment fit my actions. The members of the jury at the court martial decided that a discharge was not in the best interest of the Marine Corps. After my court-martial, I continued to provide Headquarters Marine Corps with the same service of my productivity even though I was an E-2. I believe that I should receive an change of discharge to Honorable because I prevented a possible drug occurrence within my home. I know that I should have handled the situation in a more positive way, but I had no additional support from the Command’s leaders.”

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

 2. “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 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 that of Honorable.

The FSM served on active service from October 18, 1994 to September 13, 2002 at which time he was discharged due to Misconduct.

The FSM contends the current discharge is improper because he was preventing a drug occurrence in his home and handled the situation in the best manner he could at the time. He continues to maintain the discharge is improper as he was tried by General Court Martial, punished by reduction in rank and confinement. After the punishment was finished he continued his military service in an honorable fashion, until his separation date, which should have been reflected in his discharge. But instead he is continuously punished for the offense.

This creates a need for a review of the application of the standard, for the Board to determine that the Applicant’s discharge was improper. The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted. See, SECNAVIST 5420.174 (c), Par. (f) (1).

As the representative, we 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 5420.1 74C.

Under the premises of equitable relief, we believe the Board can change the narrative reason to Expiration of Enlistment. As to the request of the change of discharge to reflect a Honorable discharge we leave that to a determination by the Board.

 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:
E-mail character references, dating July 11, 2001 (3) and February 28, 2002
Applicant’s DD Form 214
Job reference, dated April 18, 2003

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (J)               940131 - 941017  COG
         Active: USMC              941018 - 981102  HON

 Period of Service Under Review :
Date of Enlistment: 981103               Date of Discharge: 020913

 Length of Service (years, months, days):

         Active: 03 11 11
         Inactive: None

 Age at Entry: 22                          Years Contracted: 4

 Education Level: 12                        AFQT: 36

 Highest Rank: Sgt

 Final Enlisted Performance Evaluation Averages: All enlisted performance reports were available to the Board for review.

 Military Decorations: None

 Unit/Campaign/Service Awards: JSAM, MUC, GCM, NDSM with Bronze Star, SSDR, Certificate of Commendation, Certificate of Achievement, Letter of Appreciation (2)

 Days of Unauthorized Absence: None

 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 :

981103:  Applicant reenlisted for 4 years.

 010920:  Counseled for deficiencies in performance and conduct. [On 000804 your Family Advocacy case was presented before the Henderson Hall Family Advocacy Case Review Committee. It was substantiated at a level 4. You were directed to intensive individual therapy, the 6-month domestic violence group and a Military Protective Order was issued. This case was still open when, on or about 010808, you allegedly assaulted your wife. This violation of counseling and your failure to comply with MCO will not be tolerated.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020301:  General Court Martial:
         Charge I: violation of the UCMJ, Article 128 (3 specs):
         Specification 1: Unlawfully strike wife on the arm with a glass plate on 000804.
         Specification 2: Unlawfully strike wife on the face with a closed fist on 010810.
         Specification 3: Assault wife by grabbing her hair and striking her on the face with his left knee on 010810.
         Charge II: violation of the UCMJ, Article 92:
         Specification: Fail to obey a lawful order between 010815 to 010915, to wit: wrongfully entering the residence of his spouse.
         Findings: to Charge I and specification 2 and 3 there under, guilty. Charge I and II specification 1 there under, not guilty.
         Sentence: HL for 60 days, restriction for 60 days, reduction to PFC.

020329:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
020329:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
020401:  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 documented spousal abuse of your wife.

020730:  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 other than honorable conditions and recommended discharge be suspended.

020828:  SJA review determined the case sufficient in law and fact.

020905:  GCMCA [Commander, Marine Corps Base, Quantico, VA] directed the Applicant be discharged 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 20020913 general (under honorable conditions) 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: In the Applicant’s case, the Board could discern no impropriety or inequity; thereby, considered the Applicant’s discharge proper and equitable . A characterization of service of under other than honorable conditions is normally warranted when the service member’s conduct constitutes a significant departure from that expected of a Marine. The record is devoid of any evidence that the Applicant was not responsible for his conduct. A General Court-Martial at which he was found guilty of three accounts of assault on his wife mars the Applicant’s service record . The Applicant’s summary of service clearly reflects the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, and demonstrated he was unsuitable for further service. An upgrade to Honorable from general (under honorable conditions) would be inappropriate. Relief denied.

 Issue 2: The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflected his willful disobedience of the orders and directives, which regulate good order and discipline in the naval service. The Applicant, after consulting with legal counsel, elected to appear before an Administrative Discharge Board in 2002. A General (Under Honorable Conditions) - Misconduct most clearly describes the Applicant’s service. A change of narrative reason to “Expiration of Enlistment” is inappropriate. It must be noted that most Marines serve honorably and well; therefore, earning honorable discharges. In fairness to those Marines, commanders and separation authorities are tasked to ensure undeserving Marines receive no higher characterization than is due. Relief is not warranted.
  
 T here 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, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct. At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty. Relief denied.
 
The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge. The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time. 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 January 1997 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 128, Assault.
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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