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NAVY | DRB | 2004 Marine | MD04-00791
Original file (MD04-00791.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD04-00791

Applicant’s Request
The application for discharge review was received on 20040412. The Applicant requested the characterization of service received at the time of discharge be changed to general/under honorable conditions. The Applicant requested a personal appearance discharge review hearing before the Board in the Washington National Capital Region. The Applicant did not list a representative on his DD Form 293. Subsequent to the application, the Applicant obtained representation by the Veterans of Foreign Wars.

Decision

A personal appearance discharge review hearing was conducted in Washington, D.C. on 20041116. 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, authority: MARCORSEPMAN Par. 6210.6.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


 Issues, as stated

 Applicant’s issues, as stated on the application:

 “Issue 1. Recruiting duty was having an adverse effect on my physical and emotional health. I was examined by a civilian doctor as well as a military physician. Both concluded that the symptoms I was suffering from were related to stress caused by recruiting duty. Both wrote recommendations that I should be removed from recruiting duty in order for my symptoms to be relieved. (Refer to supporting documents #2, paragraph 3, sentence 4. Refer to supporting documents #3, additional comment P (1).)

Issue 2. In the seven years I had served in the United States Marine Corps, I had never been subject to any military punishment or reprimand. I had also been on three overseas deployments, consistently ran a first class PFT, qualified expert on the M16 A2 service rifle all seven times I qualified, and received numerous awards and commendations. (Refer to supporting document #1 and supporting document #8)
 Considering my outstanding performance record with the Marine Corps, it is my belief that my punishment was too severe for the infraction and I should not have been discharged, but given my punishment, retained and reassigned back to my former command where I had excelled.
Issue 3. Since my discharge from the Marine Corps, I have carried myself with the same professionalism and maturity that would be expected of anyone who was given an Honorable Discharge from the Marine Corps. I have enlisted in the Connecticut National Guard in October of 2003, and have had an exemplary record as my letters of recommendation will reflect. I have had a steady employment record, obtained my Bachelor's Degree, with a GPA of 3.06 (See supporting document #9), and have started my Master of Business Administration Degree with a GPA of 3.1. I have also conducted myself during my civilian employment with the same high level of professionalism and technical expertise that I had demonstrated while serving in the Marine Corps. (Refer to supporting document #7)

Issue 4. My discharge from the Marine Corps has interfered with my enlistment into the Connecticut Army National Guard by not permitting me to enlist as an E-4. I was forced to enlist as an E-3 as a result the character of my discharge. This characterization will also hinder my military career by preventing me from applying for certain programs that are available to all other soldiers with the same qualifications and education that I have.

Issue 5. I have shown remorse for my actions, I understand the reason why I was punished for my violations of the UCMJ, and I have demonstrated an ability to continue to conduct myself in an acceptable manner. (Refer to supporting document #10)

Issue 6. Attached are letters of character reference submitted by people that I have known while I was a Marine, have worked for in the civilian sector, or are now my superiors in the Connecticut Army National Guard. I ask the Board to please consider these letters as testimonies to my maturity, professionalism, and desire to overcome this unfortunate event in my life and advance forward with my current military career by having the characterization of my discharge upgraded. (Refer to supporting documents 4, 5, 6, 7)”

Additional issue submitted by Applicant’s counsel/representative at the time of the personal appearance hearing (VETERANS OF FOREIGN WARS):

Issue 7. “Equity of the Discharge, SECNAVINST 5420.174C 22 Aug 1984 Page 9.3 Page 9.2 encl (1).”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Medical Recommendation from M_ R. P_, MD Emergency Department,
dated March 27, 1998
SF 600 from Applicant’s Medical Record, dated April 3, 1998
Letter of Recommendation from LTC A_ B. T_, dated March 6, 2004
Letter of Recommendation from CPT S_ A. P_, dated February 21, 2004
Character Reference Letter from GySgt J_ C_, notarized January 6, 2004
Character Reference Letter from M_ T_, notarized, undated
Overview of Applicant’s Military History (2 pages)
Bachelors of Business Administration Degree from Western Connecticut State
University, dated May 19, 2002
Applicant’s letter to the Board, undated
Status Inquiry Letter dated October 8, 2004
Additional documentation presented to the Board for consideration during the personal appearance hearing and the subsequent deliberations.

 Master Brief Sheet (4 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              910618 - 961103  HON
         Inactive: USMCR (J)               900619 - 910617  COG

 Period of Service Under Review :
Date of Enlistment: 961104               Date of Discharge: 980826
Length of Service (years, months, days):

         Active: 01 09 23                  Inactive: None
Age at Entry: 23                          Years Contracted: 4
Education Level: 12                        AFQT: 67
Highest Rank: SGT        MOS: 6484, Aircraft Electronic Countermeasures
 Systems Technician
Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: 3.0 (2)                       Conduct: 3.0 (2)
Military Decorations: None
Unit/Campaign/Service Awards: NDSM, SASM, SSDR (3), AFSM, NM, MUC, GCM (2), CC (3), MM (2), LoA (2)
Days of Unauthorized Absence: None
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.6.
Chronological Listing of Significant Service Events :

961104:  Reenlisted at VMAQ-4 MAG-14 2DMAW MCAS CHERRY POINT, NC for 4 years.
980403:  Counseled for deficiencies in performance and conduct. [Your communicating to the CO your intent to just go back to the fleet and not be a recruiter any more.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
980409:  Relieved of duties as a canvassing recruiter because he refused to recruit.
980625:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86.
         Specification: Failure to go at the prescribed time to appointed place of duty, to wit: PCS Torrinton, Conn on or about 980410 at or near Springfield, MA.
         Charge II: violation of the UCMJ, Article 90.
         Specification: Willful disobedience of a superior commissioned officer on or about 980410 at or near RS Springfield, MA.
         Charge III: violation of the UCMJ, Article 92.
         Specification: Fail to obey a lawful order on or about 980410 at or near RS Springfield, MA.
         Finding: to Charge I and the specification thereunder, guilty.
         To Charge II and the specification thereunder, guilty.
         To Charge III and the specification thereunder, not guilty.
         Sentence: Reduced to E-4.
         CA action 980706: Sentence approved and ordered executed.
980710:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by his Summary Court Martial for violation of UCMJ Article 86: failure to go at the time prescribed to your appointed place of duty; Article 90: disobey a lawful order from a commissioned officer; and Article 92: disobey a lawful order.
980710:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
980710:  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 the Applicant’s Summary Court-Martial for Commission of a Serious Offense.
980818:  SJA review determined the case sufficient in law and fact.
980818:  GCMCA [Commanding General, Marine Corps Recruit Depot/Eastern Recruiting Region] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
000222:  NDRB documentary record review Docket Number MD99-00876 conducted. Determination: discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19980826 under other than 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: The Applicant contends his disciplinary problems were the result of job related stress. The NDRB recognizes that serving in the United States Marine Corps is challenging. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve our country. It must be noted most Marines serve honorably; thereby, earning honorable discharges. In fairness to those Marines, commanders and separation authorities are tasked to ensure the undeserving receive no higher a service characterization than is due. The NDRB found the Applicant's service was equitably characterized. An upgrade to general (under honorable conditions) would be inappropriate. Relief denied.

Issues 2 & 5: The Applicant states his discharge was “too severe for the infraction” and “In the seven years (he) had served in the United States Marine Corps, (he) had never been subject to any military punishment or reprimand.” When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as honorable. A service characterization of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a member of the United States Marine Corps. T he Applicant’s service is marred by conviction at Summary Court-Martial for unauthorized absence and willfully disobeying a superior commissioned officer. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of directives regulating good order and discipline in the naval service, and falls far short of that required for a service characterization upgrade. It must be noted most Marines serve honorably and with distinction; thereby, earning favorable discharges. In fairness to those Marines, commanders and separation authorities are tasked to ensure the undeserving receive no higher a service characterization than is due. While the NDRB respects the fact the Applicant tried to seek alternative solutions to his situation, his service is equitably characterized as being performed under other than honorable conditions. The Applicant’s record of service and accomplishments does not mitigate his misconduct to the degree that would warrant an upgrade to his characterization of service. Relief denied.
Issues 3, 4, 6, & 7: The Applicant's other than honorable discharge was proper and equitable. The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted. There is no evidence of impropriety, inequity or procedural irregularities in the Applicant's discharge. The Applicant's misconduct is clearly documented. He acknowledged and waived his rights to administrative review. He was notified that by waiving his rights and accepting an other than honorable discharge, he could possibly encounter significant difficulties in obtaining employment and other benefits. The Applicant was afforded the appropriate due process during the processing of his case. The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or job related opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. In the Applicant’s case, the Board discovered no impropriety or inequity and therefore considers the Applicant’s discharge proper and equitable. An upgrade of the Applicant's discharge to an honorable characterization is not warranted. Relief denied.

The NDRB has no authority to provided additional review of this case since the Board has reviewed the Applicant’s discharge on two separate occasions. The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

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 31 August 2001).

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, W illfully disobeying a superior commissioned officer.

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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