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NAVY | DRB | 2004 Marine | MD04-00041
Original file (MD04-00041.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD04-00041

Applicant’s Request
The application for discharge review was received on 20031001. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests 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, the Applicant was informed that the Board first conducts a documentary record review.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040617. 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/Misconduct – Minor disciplinary infractions (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.2.



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

 1. “To all whom this matter may concern,

When I joined the Marine Corps in July 1988, it was because I knew that I would receive the discipline that I needed to break the inner-city mentality that I had brandished during my youth. Though, at that time, I would not have known the words that describe the why. All I knew was that SSgt P_, my recruiter, was like a big brother to me and I enjoyed the feeling of camaraderie we future inductees shared while awaiting our journey to Paris Island. I was so excited about becoming a Marine that I recruited 2 of my friends before I had taken my place on the infamous yellow footprints.

I excelled in boot camp, graduating 3 rd squad leader with the rank of Private First Class. When I arrived at MOS training, I was ready to eat gunpowder and spit bullets. I again graduated in the top 5% of my class. When I got orders for MCAS Cherry Point, I was excited. I had aspirations of being a pilot and that’s exactly what I’d be surrounded by there.

It was at my first duty station where I realized that being a Unit Diary Clerk was a lot like having a regular 9-5 job . I accepted this, however, deciding that I would be the best Diary Clerk possible. I believe that I was on the right track until we made our first deployment overseas.

I was on fire watch with a Staff Sergeant who made a passive comment about Niggers... I was even more outraged when he acted as though he had said nothing wrong. I could not wait until the next day so that I could report it to my superiors. After all, I did work directly with the CO of our Squadron, and I knew that heads would roll for such blatant racism. What happened changed my entire outlook on the Corps. What happened was. NOTHING... I was told that I had possibly misheard him and that even had he made such a statement (which he denied), I was blowing it out of proportion. “There are no colors in this uniform, we are all green..."

From that point, I could not bring myself to be motivated about much of anything. I felt like I had been fooled into believing in a lie and that my superiors saw me as a servant, not a Marine with a bright mind and promising future. In that instant, the wind had been stolen from my sails. My aspirations of staying in for 20+ years were thwarted an all I knew was that I wanted to get out.

When we got back from deployment, I decided that I would attempt to do an MOS change to a job that could be more easily equated to a civilian career. I chose computer operator because at the time, the computer field was booming. My superiors informed me that they would not assist me in my MOS change because it was a waste of time and that the only way I would be able to do it was if I did it myself. So I did.

When I transferred from VMA-224 to H & HS, I was not received well. I was informed by the Sergeant Major of the battalion that he would not tolerate any trouble from me. I tried to keep focus on the fact that I only had two years of service left before my tour was through. There was a definite air of tension with my new battalion that was there before I was.

My new MOS was as close to a civilian job as a military position could be. My superior was civilian (B_ D_) and we actually worked side by side with civilian counterparts. The only military presence in my daily activities was Gunnery Sergeant B_. He was in charge of my military activities such as PT, PFTs and rifle range qualification. I sensed that he did not like the fact that we reported directly to civilians, but that policy also was in play long before I was.

During my tenure as a Computer Operator, Gunny decided that I should be FAPped for six months to the Air Station’s Military Police Command. This was seen by many as a punishment, as the MP regiment was very strict and rigorous. However, I had joined the Marines for the discipline, so I thrived in this environment. I requested that I be transferred permanently to the command (which became an option after I believe 6 months) but, I was denied by Gunnery Sergeant B_. My Watch Commander also attempted to have me promoted to Corporal during my FAP term, but this was also denied by my primary command. That was when I made my greatest error. I decided that I would no longer try to stay in and that I try my best to get out without committing any serious offense.

So I decided to go UA. Technically, I decided to Desert. The reason behind this was simple. My thinking was that in the civilian world there is no criminal equivalent for Unauthorized Absence or Desertion. These offenses are strictly military. I stayed away for 31 days so that when I was given Office Hours for my offense, I had the option to request a Court Martial. At my Court Martial, I requested to be released from active duty.

While I was in the brig for my Desertion charge, I was visited by the new CO of H & HS squadron. He had reviewed my service record and felt that I was the victim of a string of bad circumstances. Against the advise of my Sergeant Major, the CO made a deal with me. He stated that if I could remain out of trouble and out of his office for any negative offenses, he would allow me to receive my Honorable Discharge on July 17, 2002. During this 4-month period, I would work directly under the barracks NCOIC, SSGT P_ (I believe that was his name).

In the last twenty days of my enlistment, a local pizza company mailed notice of a bounced check from the previous year to my command. This document somehow made it’s way to the Sergeant Major’s desk, Of course, it was then taken directly to the CO whose hands, at that point, were tied. They began paperwork for my discharge that day.

I contacted the local pizza place to inquire about the check. They informed me that the letter was sent in err and that the matter had been cleared up 4 days after the check bounced. I informed them of my dilemma, and they even went as far as to write a formal letter acknowledging their error and apologizing for any trouble it may have caused. When I brought the letter to the CO. however, my plight was now falling on mute ears. I was told that it was too late and that what was done was done.

I was discharged from the United States Marine Corps on July 16, 2002 with a General Discharge under Other than Honorable Conditions.., one day before I would have been discharged had I remained a stellar Marine. This was the epitome of Poetic Justice.

I now am a grown man … a dedicated husband of 7 years... a loving father … a committed worker. I have been tarnished by the mistakes of a headstrong Youth for ten years now, I truly feel that my debt to society for my military indiscretions has been paid. I am requesting that my Discharge be upgraded to Honorable. Thank you for your time and patience in this matter.

Sincerely,

E_ D_ B_ ( Applicant )”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Circle of Honor Award printout
Applicant’s statement of classes completed
Character statement dtd 20 Dec 2002
Copy of emails about or from Applicant [5 pages]

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                880309 - 880717  COG

 Period of Service Under Review :
Date of Enlistment: 880718               Date of Discharge: 920716

 Length of Service (years, months, days):

         Active: 03 11 29
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 89

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.1 (14)             Conduct: 4.0(14)

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, NDSM

Days of Unauthorized Absence: 32

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Minor disciplinary infractions (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.2.

 Chronological Listing of Significant Service Events :

891023:  Counseled for deficiencies in performance and conduct. [Lack of understanding of Article 86 and Squadron Order 1050.1V] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

900403:  Counseled for deficiencies in performance and conduct. [Dishonored check, loss of check cashing privileges at MWR] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

900507:  Counseled for deficiencies in performance and conduct. [Being at appointed place at the given time, Rifle Range] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

910702:  Counseled for deficiencies in performance and conduct. [A report of indebtedness, financial irresponsibility] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

910717:  NJP for violation of UCMJ, Article 86 (1 Spec)
         Award: Forfeiture of $100 per month for 1 month(s), extra duty for 30 days, reduction to E-2. Forfeiture and reduction susp for 6 mos. No indication of appeal in the record.

910805:  NJP for violation of UCMJ, Article 86 (2 Specs): 910711 failed to go at time proscribed to his appt place of du; 910718 failed to go at time proscribed to his appt place of du.
         Award: Restriction for 30 days, reduction to E-2. Reduction susp for 6 mos. No indication of appeal in the record.

910930:  To unauthorized absence.

911101:  From unauthorized absence, surrendered.

920123:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86.
         Specification: On or about 910930, w/o auth, abs himself fr his unit, to wit: HQHQRON, MCAS, CHERPT, NC, and did remain so absent until on or about 911101.
         Finding: to Charge I and the specification thereunder, guilty.
         Sentence: Forfeiture of $587.00, confinement and hard labor for 1 mo.
         CA action 920129: Sentence approved and ordered executed.

920430:  Counseled for deficiencies in performance and conduct. [Instances of UA and financial irresponsibility] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920617:  NJP for violation of UCMJ, Article 134 (1 Spec): On or about 18 Dec 1990 being indebted to PML in the sum of $1073.04 for 8 mos which amount became dues and payable on or about 2 Nov 1991.
         Award: Reduction to E-1. No indication of appeal in the record.

920630:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions as evidenced by three nonjudicial punishments, one summary court-martial and other adverse entires contained on page 11.
920630:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

920630:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.

920702:  SJA review determined the case sufficient in law and fact.

920702:  GCMCA [CG, MCASCP] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19920716 under other than honorable conditions for misconduct due to minor disciplinary infractions (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. When the service of a member of U.S. Marine Corps has been honest and faithful, it is appropriate to characterize that service as honorable. An Under Other Than Honorable Conditions discharge 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. The Applicant’s service was marred by three nonjudicial punishment proceedings for four infractions of the UCMJ. The Applicant was convicted at summary court-martial for unauthorized absence in excess of 30 days. Further, the Applicant was counseled for deficiencies in performance and conduct throughout his enlistment, on five occasions, with the first occasion in 1989 and his last counseling in 1992. The Applicant openly admits in his statement that he decided to become a deserter. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

The evidence of record does not support the Applicant’s allegation, that a bounced check from a local pizza company was erroneously reported to the command, nor did the Applicant provide any supporting documentation. The evidence of record does show, however, nonjudicial punishment proceedings for a violation of Article 134 for indebtedness for 8 months for $1073.04. Relief on this basis is denied.

 The following is provided for the edification of the Applicant. Normally, to permit relief, a procedural error or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no such errors after a review of Applicant’s case. 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 naval service. The NDRB is authorized, however, to consider 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. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided sufficient documentation for the Board to consider. Therefore, no relief is appropriate.


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 documentation to support any claims of post-service accomplishments or any other evidence related to his discharge 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 P1900.16D), 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.
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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