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NAVY | DRB | 2004 Marine | MD04-01234
Original file (MD04-01234.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD04-01234

Applicant’s Request
The application for discharge review was received on 20040726. The Applicant requested the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance discharge review before a traveling panel closest to (left blank). The Applicant did not list any representative on the DD Form 293. Subsequent to application, the Applicant obtained representation by the Veterans of Foreign Wars. In the acknowledgement letter, the Applicant was informed the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area. The NDRB also advised the board first conducts a documentary review prior to any personal appearance hearing.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20041029. 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-Pattern of misconduct (with administrative discharge board), authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

1. “Dear,
 Please consider this unique review for Discharge upgrade. All documents attached pertain to my Good Conduct, Character and service as an Honorable Marine.
I realize my juvenile errors cost me the appropriate Discharge. I fully deserve a Honorable upgrade. I served faithfully in the Operation Desert Shield/Desert Storm.
There was a gross misuse of Senior Marine power and authority.
I have attached hard physical evidence that supports my claim. Since my departure and Subsequent Police officer Status I am fully aware of Civil/constitutional Law. It amazes me that one unscrupulous Senior NCO could deviate from the Marine Corps Motto “Semper Fidelis.” I am a 4 th generation Marine whose granddad served Honorably at Iwo Jima, my father 100% disabled purple heart in Vietnam (USMC) now diseased. My brother and fellow Boston Police officer USMC also served in Persian Gulf. Every character reference suggests and proves that my time in service is non other than completely HONORABLE.
To this day I still adhore the Marine traditions. I am member of VFW and American Legion alike. I am proud that I served and only want an upgrade that justifies my character.
In closing this case is pretty much clearly defined as an absolute Gross wielding of Power by a Senior NCO!
I walk proud and never forgot the Latin phrase “Semper Fidelis.”
I have been on the straight and narrow path with not one negative remark in the civilian sector. Never arrested, No speed tickets, NO DRUGS this is why I am able to Police Society in my Capacity. Respectfully yours.”
Issues submitted by Applicant’s counsel/representative ( VETERANS OF FOREIGN WARS):
2. “ To Whom It May Concern:

This letter is to confirm that Mr. J_ J. C_ (Applicant), Social Security Number (deleted), a former Marine and veteran of the Persian Gulf Conflict, is receiving services from this facility of the United States Department of Veterans Affairs. We are attempting to have his military discharge upgraded.

Mr. C_’s (Applicant's) discharge from the Marine Corps in 1993 was less than fully Honorable, due entirely to the abuse of authority by those entrusted with positions over him at the time. These individuals actually attempted, successfully, to lower the performance marks awarded to Mr. C_ (Applicant) previously at entirely different military bases. When mr. C_ (Applicant) confronted the perpetrators of this flagrant falsification of his official military records, he was himself disciplined and received a less-than-fully-honorable discharge as a direct result.

I am also in a position to confirm, through lengthy examination of his complete military records, that at no time was Mr. C_ (Applicant) accused of-much less convicted for-anything in the slightest way criminal or even questionable. Mr. C_ (Applicant) was at all times an honorably serving marine, who was in the end victimized by persons with authority considerably in excess of their personal character. The result is that Mr. C_ (Applicant) presently holds an administrative discharge from the Marine Corps that unfairly reflects upon his character and the value of his service.

I am in a position to state unequivocally that Mr. C_ (Applicant) was a marine in the finest tradition of that service, a Marine who unfortunately experienced the ability of those in authority to abuse it by awarding him a discharge which falsely taints the character of his service to his country.

I am available to provide a personal and confidential reference regarding Mr. C_ (Applicant). Please call the telephone number on this stationery, and they will refer the call to me.

Very respectfully,

R_ K_, VAVS (Applicant's representative) .”
Additional issues submitted by Applicant’s counsel/representative (VETERANS OF FOREIGN WARS):

 3. “ Applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning his application. His records were reviewed on 10-12-04 and the following comments are hereby submitted.

We support the applicant’s contentions that his discharge be upgraded.

 We refer this case to the Board for their careful and compassionate consideration and request the applicant's discharge be reviewed for an upgraded discharge.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (2 copies)
Applicants ltr to his Administrative discharge Review Board, dtd 17 Aug 1993
Proficiency/Conduct page dtd 93/02/25 (2 copies)
Applicant’s ltr from Saudi Arabia published in the “Hyde Park Tribune”
Applicant’s SRB (4 pages)
Character Statements (4 pages)
Certificate of Good Conduct, dtd 24 July 1992
Promotion Warrant (Cpl), dtd 1 September 1992
Promotion Warrant (LCpl), dtd 1 December 1990
Promotion Warrant (PFC), dtd 1 May 1990
Graduation Certificate (Ammunition Specialist), dtd 19 April 1989
Course Completion Certificate, dtd 27-31 January 1992
Completion Certificate (Basic Training Course for Police Officers) from Boston Police
Academy
Boston Police Academy transcript, dtd July 24, 1997
Character reference, dtd August 6, 1997
Character reference, dtd March 28, 1994
Character reference, dtd March 28, 1994
Character reference, dtd March 28, 1994
Character reference, dtd March 1, 1996
Certificate of Recognition from Catholic Memorial High School
Diploma from Catholic Memorial High School, dtd 7 June 1985
Applicant’s ltr Mr. S_ S_, dtd May 15, 1993
M&RA response to Congressional inquiry, dtd 9 Jul 1993
Awards Branch response to Applicant, dtd 3 Mar 1994
Cover ltr of Departmental response to Congressional Inquiry, dtd July 14, 1993
Congressional response to Applicant concerning his correspondence, dtd June 29 1993
Character references on behalf of the Applicant to his Summary Court-Martial
(13 pages)
Applicant’s Summary Court-Marital Appeal letter

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active:                            None                       HON
         Inactive: USMCR (J)               880707 - 881106  COG

 Period of Service Under Review :
Date of Enlistment: 881107               Date of Discharge: 930919

 Length of Service (years, months, days):

         Active: 04 09 21 (Accounts for lost time.)
         Inactive: None Age at Entry: 21                    Years Contracted: 6 Education Level: 12                     AFQT: 63 Highest Rank: Cpl                          MOS: 2311, Ammo Tech Final Enlisted Performance Evaluation Averages (number of marks): Proficiency: 4.1 (17)                         Conduct: 3.7 (17) Military Decorations: GCM, LtrCom Unit/Campaign/Service Awards: SSDR, NDSM, SASM (w/ 2 stars),
KLM, NUC
 Days of Unauthorized Absence: (22) 890525-890616
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct-Pattern of misconduct (with administrative discharge board), authority: MARCORSEPMAN Par. 6210.3.

Chronological Listing of Significant Service Events :

890503:  NJP for violation of UCMJ, Article 91: Disrespect … by lying.
 NJP for violation of UCMJ, Article 92: Disobedience of a lawful order …
 Awd red to E-1, forf of $75.00 per month for 1 month, 14 days restriction and extra duties. Restriction and extra duties susp for 6 mos. Not appealed.
890630:  Applicant UA (AWOL) since 1630, 890525.
890630:  Applicant surrendered from UA (AWOL) at 1200, 890616.
890720:  NJP for violation of UCMJ, Article 86: UA (AWOL) 890525 to 890616.
 NJP for violation of UCMJ, Article 92: Did … willfully disobeyed BnO 5510.3M …
Awd forf of $349.00 per month for 2 months, and 30 days restriction and extra duties. Not appealed.
890910:  Counseled for deficiencies in performance and conduct. [Concerning the seriousness of losing an I. D. card and he is further advised if he should lose another he may be prosecuted under Art 108 UCMJ.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
891207:  Counseled for deficiencies in performance and conduct. [Violation of curfew in Tijuana.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
900228:  Counseled for deficiencies in performance and conduct. [… not recommended for promotion … because of frequent involvement with civilian authorities.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
900411:  Counseled for deficiencies in performance and conduct. [Conviction involving civil charges of assault.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
921124:  Counseled for deficiencies in performance and conduct. [Failure to be at appointed place of duty.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
930420:  NJP for violation of UCMJ, Article 86: … was not present for training …
 Awd red to LCpl, E-3. Red susp for 6 mos. Not appealed.
930618:  NJP imposed on 930420 … is hereby vacated and the punishment is ordered executed …
930628:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 91 (4 Specifications):
         Specification 1: … received a lawful order from … a NCO, then known … to be a NCO … an order which it (was) his duty to obey, did … willfully disobey the same.
         Specification 2: … received a lawful order from … a SNCO, then known … to be a SNCO … an order which it (was) his duty to obey, did … willfully disobey.
 Specification 3: … was disrespectful in language towards … a NCO, then known … to be a superior NCO, who was then in the execution of his office …
Specification 4: … was disrespectful in language towards … a SNCO, then known … to be a superior SNCO, who was then in the execution of his office …
          Finding: to Charge I and all specifications thereunder, guilty.
         Sentence: Reduced to E-1, and forfeiture of $543.00 per month for 1 month.
         CA action 930628: Sentence approved and ordered.

930712:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by the Applicant’s “numerous derogatory counseling entries, three nonjudicial punishments, and summary court-martial conviction.”
930712:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board. (Applicant subsequently retained counsel before appearing before the Administrative Discharge Review Board.)
930719:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct. The factual basis for this recommendation was the Applicant’s “numerous derogatory counseling entries, three nonjudicial punishments, and summary court-martial conviction.”

930819:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to a pattern of misconduct, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

930909:  SJA review determined the case sufficient in law and fact.

930909:  GCMCA [Commanding General, 1 st Marine Expeditionary Brigade] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19930919 under other than honorable conditions for misconduct due to a pattern of misconduct (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, 2 & 3: Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the Applicant’s enlistment. While he may feel he “served faithfully in the Operation Desert Shield/Desert Storm,” it does not mitigate the Applicant’s disobedience of the orders and directives regulating good order and discipline in the naval service. The Applicant’s service record is marred by several negative counseling entries, the awarding of non-judicial punishment (NJP) on three separate occasions, and a conviction at Summary Court-Martial; thereby, substantiating his misconduct while demonstrating he was unsuitable for further service. The record does not support the Applicant’s inference “ that one unscrupulous Senior NCO” was the cause of his discharge. His misconduct was demonstrated over a period of nearly four years. To be discharged for a Pattern of misconduct, a Marine must have two or more discreditable involvements with civil and/or military authorities or two or more instances of conduct prejudicial to good order and discipline within one enlistment. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience and falls well short of that required for an honorable characterization of service. Additionally, n o other Narrative Reason for Separation could more clearly describe why the Applicant was discharged. The record is devoid of any evidence the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. It must be noted most Marines serve their whole enlistment honorably and earn their 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. An upgrade to honorable would be inappropriate. Relief denied.

Regarding the Applicant’s contention his records were falsified or “wrongfully altered,” there is no evidence to support this allegation. Finally, 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 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. While the Board was impressed with the Applicant’s post-service conduct there was not sufficient documentation to mitigate his misconduct while on active duty. Relief denied.

 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 P1900.16D), 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; Article 91, Insubordinate conduct ; Article 92, Failure to obey an order or regulation .
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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