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NAVY | DRB | 2004 Marine | MD04-01471
Original file (MD04-01471.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD04-01471

Applicant’s Request
The application for discharge review was received on 20040917. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requested a documentary record discharge review. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that he was approaching the 15-year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington D.C. area. The Applicant elected a personal appearance hearing before the Board in the Washington National Capital Region.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 20050926. 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 HONORABLE CONDITIONS (GENERAL)/Misconduct - Commission of a serious offense (all other) admin discharge board required but waived, authority: MARCORSEPMAN Par. 6210.6.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“The terms of my court-martial did not include a discharge from active duty. My unit chose to separate me following the conclusion of my sentence. I was young and impetus and I made a mistake. I paid for that mistake. Since I was separated on April 19, 1990, I have completed my associate degree, have received my bachelor’s degree and I am currently enrolled in graduate school. I was inducted into the Honor Society (Phi Theta Kappa) and I have worked for Hudson County College for seven years. I also serve as a mentor & advisor to students. Please note an upgrade to my discharge would provide closure to a tumultuous time in my life.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from Phi Theta Kappa, dated June 26, 2002
Unofficial HCCC Undergraduate Academic Record dated November 11, 2004 (3 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                851227 - 860629  COG

 Period of Service Under Review :
Date of Enlistment: 860630               Date of Discharge: 900419

 Length of Service (years, months, days):

         Active: 03 09 20                  [Does not exclude lost time]
         Inactive: None

 Age at Entry: 17 (Parental Consent) Years Contracted: 6

 Education Level: 12                        AFQT: 79

 Highest Rank: LCpl                         MOS: 1141

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.6 (9)                       Conduct: 2.9 (10)

 Military Decorations: None

 Unit/Campaign/Service Awards: MUC

 Days of Unauthorized Absence: 248

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

UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct-Commission of a serious offense (all other) admin discharge board required but waived, authority: MARCORSEPMAN Par. 6210.6.

 Chronological Listing of Significant Service Events :

870915:  Applicant informed eligible but not recommended for promotion to Corporal during the November to January promotion period because of lack of responsibility/dependability.

871027:  Counseled for deficiencies in performance and conduct. [Lack of responsibility. Failure to follow Marine Corps grooming standards.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

871210:  NJP for violation of UCMJ, Article 86 (3 specs): (1) Unauthorized absence from 0745, 871116-0745, 871117, (2) Unauthorized absence from 1530-1900, 871130, (3) Unauthorized absence 1900-2000, 871202.
          Award: Forfeiture of $178 per month for 1 month, restriction and extra duty for 14 days. Forfeiture suspended for 6 months. No indication of appeal in the record.
880212:  Applicant informed eligible but not recommended for promotion to Corporal for the month of February because of lack of leadership.

880408:  Counseled for deficiencies in performance and conduct. [Unsatisfactory performance as evidenced by your failure to conform to Marine Corps standards of height and weight. Your present weight has been identified as 189 lbs, which is 14 lbs over your maximum allowable weight of 175 lbs.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
880411:  Applicant informed eligible but not recommended for promotion to Corporal for the month May due to his status on Battalion weight control.

880531:  Applicant informed eligible but not recommended for promotion to Corporal for the month May due to his status on Battalion weight control.

 880609:  Vacate suspended forfeiture awarded at CO’s NJP dated 871210.

 880609:  NJP for violation of UCMJ, Article 86: Unauthorized absence from appointed place of duty on 0730-1600, 880531, (2) Unauthorized absence 0600, 880602, to wit: remedial PT.
         Award: Forfeiture of $172 per month for 1 month, restriction and extra duty for 14 days. Not appealed.
890906:  Special Court Martial:
         Charge I: violation of the UCMJ, Article 86:
         Specification: Absent himself from organization on 880822 and did remain so absent until he was apprehended on 890425.
         Charge II: violation of the UCMJ, Article 91:
         Specification: Willfully disobeyed an order from Sgt W_ to clean the shed between building 1514 and 1515 on 890506.
         Charge III: violation of the UCMJ, Article 134 (40 specifications):
         Specification 1: With intent to defraud, falsely pretend to the U.S. Government to have authority to make long distance telephone calls, then knowing pretenses were false, by means thereof did wrongfully obtain from the United States services of a value of $2.56, to wit: long distance telephone calls on 890505.
         Specification 2: With intent to defraud, falsely pretend to the U.S. Government to have authority to make long distance telephone calls, then knowing pretenses were false, by means thereof did wrongfully obtain from the United States services of a value of $.29, to wit: long distance telephone calls on 890505.
         Specification 3: With intent to defraud, falsely pretend to the U.S. Government to have authority to make long distance telephone calls, then knowing pretenses were false, by means thereof did wrongfully obtain from the United States services of a value of $.67, to wit: long distance telephone calls on 890509.
         Specification 4: With intent to defraud, falsely pretend to the U.S. Government to have authority to make long distance telephone calls, then knowing pretenses were false, by means thereof did wrongfully obtain from the United States services of a value of $1.05, to wit: long distance telephone calls on 890509.
         Specification 5: With intent to defraud, falsely pretend to the U.S. Government to have authority to make long distance telephone calls, then knowing pretenses were false, by means thereof did wrongfully obtain from the United States services of a value of $4.30, to wit: long distance telephone calls on 890509.
         Specification 6: With intent to defraud, falsely pretend to the U.S. Government to have authority to make long distance telephone calls, then knowing pretenses were false, by means thereof did wrongfully obtain from the United States services of a value of $.41, to wit: long distance telephone calls on 890511.
         Specification 7: With intent to defraud, falsely pretend to the U.S. Government to have authority to make long distance telephone calls, then knowing pretenses were false, by means thereof did wrongfully obtain from the United States services of a value of $.09, to wit: long distance telephone calls on 890511.
         Specification 8: With intent to defraud, falsely pretend to the U.S. Government to have authority to make long distance telephone calls, then knowing pretenses were false, by means thereof did wrongfully obtain from the United States services of a value of $2.98, to wit: long distance telephone calls on 890516.
         Specification 9: With intent to defraud, falsely pretend to the U.S. Government to have authority to make long distance telephone calls, then knowing pretenses were false, by means thereof did wrongfully obtain from the United States services of a value of $.35, to wit: long distance telephone calls on 8900516.
         Specification 10: With intent to defraud, falsely pretend to the U.S. Government to have authority to make long distance telephone calls, then knowing pretenses were false, by means thereof did wrongfully obtain from the United States services of a value of $.09, to wit: long distance telephone calls on 890516.
         Specification 11: With intent to defraud, falsely pretend to the U.S. Government to have authority to make long distance telephone calls, then knowing pretenses were false, by means thereof did wrongfully obtain from the United States services of a value of $2.94, to wit: long distance telephone calls on 890516.
         Specification 12: With intent to defraud, falsely pretend to the U.S. Government to have authority to make long distance telephone calls, then knowing pretenses were false, by means thereof did wrongfully obtain from the United States services of a value of $.09, to wit: long distance telephone calls on 890516.
         Specification 13: With intent to defraud, falsely pretend to the U.S. Government to have authority to make long distance telephone calls, then knowing pretenses were false, by means thereof did wrongfully obtain from the United States services of a value of $.52, to wit: long distance telephone calls on 890516
         Specification 14: With intent to defraud, falsely pretend to the U.S. Government to have authority to make long distance telephone calls, then knowing pretenses were false, by means thereof did wrongfully obtain from the United States services of a value of $1.33, to wit: long distance telephone calls on 890516.
         Specification 15: With intent to defraud, falsely pretend to the U.S. Government to have authority to make long distance telephone calls, then knowing pretenses were false, by means thereof did wrongfully obtain from the United States services of a value of $1.82, to wit: long distance telephone calls on 890522.
         Specification 16: With intent to defraud, falsely pretend to the U.S. Government to have authority to make long distance telephone calls, then knowing pretenses were false, by means thereof did wrongfully obtain from the United States services of a value of $.09, to wit: long distance telephone calls on 890529.
         Specification 17: With intent to defraud, falsely pretend to the U.S. Government to have authority to make long distance telephone calls, then knowing pretenses were false, by means thereof did wrongfully obtain from the United States services of a value of $.09, to wit: long distance telephone calls on 890529.
         Specification 18: With intent to defraud, falsely pretend to the U.S. Government to have authority to make long distance telephone calls, then knowing pretenses were false, by means thereof did wrongfully obtain from the United States services of a value of $.09, to wit: long distance telephone calls on 890529.
         Specification 19: With intent to defraud, falsely pretend to the U.S. Government to have authority to make long distance telephone calls, then knowing pretenses were false, by means thereof did wrongfully obtain from the United States services of a value of $.09, to wit: long distance telephone calls on 890529.
         Specification 20: With intent to defraud, falsely pretend to the U.S. Government to have authority to make long distance telephone calls, then knowing pretenses were false, by means thereof did wrongfully obtain from the United States services of a value of $.09, to wit: long distance telephone calls on 890529.
         Specification 21: With intent to defraud, falsely pretend to the U.S. Government to have authority to make long distance telephone calls, then knowing pretenses were false, by means thereof did wrongfully obtain from the United States services of a value of $.15, to wit: long distance telephone calls on 890529.
         Specification 22: With intent to defraud, falsely pretend to the U.S. Government to have authority to make long distance telephone calls, then knowing pretenses were false, by means thereof did wrongfully obtain from the United States services of a value of $23.44, to wit: long distance telephone calls on 890609.
         Specification 23: With intent to defraud, falsely pretend to the U.S. Government to have authority to make long distance telephone calls, then knowing pretenses were false, by means thereof did wrongfully obtain from the United States services of a value of $.75, to wit: long distance telephone calls on 890610.
         Specification 24: With intent to defraud, falsely pretend to the U.S. Government to have authority to make long distance telephone calls, then knowing pretenses were false, by means thereof did wrongfully obtain from the United States services of a value of $2.07, to wit: long distance telephone calls on 890610.
         Specification 25: With intent to defraud, falsely pretend to the U.S. Government to have authority to make long distance telephone calls, then knowing pretenses were false, by means thereof did wrongfully obtain from the United States services of a value of $.37, to wit: long distance telephone calls on 890610.
         Specification 26: With intent to defraud, falsely pretend to the U.S. Government to have authority to make long distance telephone calls, then knowing pretenses were false, by means thereof did wrongfully obtain from the United States services of a value of $.73, to wit: long distance telephone calls on 890610.
         Specification 27: With intent to defraud, falsely pretend to the U.S. Government to have authority to make long distance telephone calls, then knowing pretenses were false, by means thereof did wrongfully obtain from the United States services of a value of $.07, to wit: long distance telephone calls on 890610.
         Specification 28: With intent to defraud, falsely pretend to the U.S. Government to have authority to make long distance telephone calls, then knowing pretenses were false, by means thereof did wrongfully obtain from the United States services of a value of $.55, to wit: long distance telephone calls on 890610.
         Specification 29: With intent to defraud, falsely pretend to the U.S. Government to have authority to make long distance telephone calls, then knowing pretenses were false, by means thereof did wrongfully obtain from the United States services of a value of $9.73, to wit: long distance telephone calls on 890610.
         Specification 30: With intent to defraud, falsely pretend to the U.S. Government to have authority to make long distance telephone calls, then knowing pretenses were false, by means thereof did wrongfully obtain from the United States services of a value of $.23, to wit: long distance telephone calls on 890611.
         Specification 31: With intent to defraud, falsely pretend to the U.S. Government to have authority to make long distance telephone calls, then knowing pretenses were false, by means thereof did wrongfully obtain from the United States services of a value of $.07, to wit: long distance telephone calls on 890611.
         Specification 32: With intent to defraud, falsely pretend to the U.S. Government to have authority to make long distance telephone calls, then knowing pretenses were false, by means thereof did wrongfully obtain from the United States services of a value of $9.41, to wit: long distance telephone calls on 890611.
         Specification 33: With intent to defraud, falsely pretend to the U.S. Government to have authority to make long distance telephone calls, then knowing pretenses were false, by means thereof did wrongfully obtain from the United States services of a value of $3.27, to wit: long distance telephone calls on 890611.
         Specification 34: With intent to defraud, falsely pretend to the U.S. Government to have authority to make long distance telephone calls, then knowing pretenses were false, by means thereof did wrongfully obtain from the United States services of a value of $14.99, to wit: long distance telephone calls on 890613.
         Specification 35: With intent to defraud, falsely pretend to the U.S. Government to have authority to make long distance telephone calls, then knowing pretenses were false, by means thereof did wrongfully obtain from the United States services of a value of $.09, to wit: long distance telephone calls on 890615.
         Specification 36: With intent to defraud, falsely pretend to the U.S. Government to have authority to make long distance telephone calls, then knowing pretenses were false, by means thereof did wrongfully obtain from the United States services of a value of $3.20, to wit: long distance telephone calls on 890616.
         Specification 37: With intent to defraud, falsely pretend to the U.S. Government to have authority to make long distance telephone calls, then knowing pretenses were false, by means thereof did wrongfully obtain from the United States services of a value of $.13, to wit: long distance telephone calls on 890621.
         Specification 38: With intent to defraud, falsely pretend to the U.S. Government to have authority to make long distance telephone calls, then knowing pretenses were false, by means thereof did wrongfully obtain from the United States services of a value of $.13, to wit: long distance telephone calls on 890621.
         Specification 39: With intent to defraud, falsely pretend to the U.S. Government to have authority to make long distance telephone calls, then knowing pretenses were false, by means thereof did wrongfully obtain from the United States services of a value of $.09, to wit: long distance telephone calls on 890621.
         Specification 40: With intent to defraud, falsely pretend to the U.S. Government to have authority to make long distance telephone calls, then knowing pretenses were false, by means thereof did wrongfully obtain from the United States services of a value of $5.05, to wit: long distance telephone calls on 890621.
         Findings: to Charge I and III and specifications thereunder, guilty, to Charge II withdrawn.
         Sentence: Confinement for 6 months, reduction to E-1.
         CA 891016: Sentence approved and ordered executed.

890906:  Applicant to confinement.

891013:  Counseled for deficiencies in performance and conduct. [Assignment of proficiency marks of 2.0 because of your inability to complete a task without close supervision.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

900111:  Commanding Officer recommended discharge by reason of misconduct due to commission of a serious offense.
900125:  Applicant released from confinement.

900214:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
900214:  Upon consultation with counsel, Applicant submits a letter to the Commanding Officer. Upon consultation with counsel, the Applicant offers to waive his Administrative Discharge Board if he is awarded a General discharge.
900215:  Applicant notified of intended recommendation for discharge by reason of misconduct due to the commission of a serious offense. The least favorable characterization of service possible is under other than honorable conditions though a general (under honorable conditions) is recommended.

900215:  Commanding Officer recommended discharge under honorable conditions (general) by reason of misconduct due to the commission of a serious offense. The factual basis for this recommendation was your failure to conform to the standards of the Marine Corps. On 890906, you were convicted by special court-martial for violation of Articles 86 and 134, Uniform Code of Military Justice, unauthorized absence for 246 days and forty (40) specifications of wrongfully obtaining government services, i.e. long distance telephone calls. Due to the seriousness of the offenses, I have determined that you posses no potential for further service and accordingly, your retention is not warranted.

900313:  SJA review determined the case sufficient in law and fact.

900322:  Commanding General, Marine Corps Air Ground Combat Center, Twentynine Palms, CA directed the Applicant's discharge under honorable conditions (general) 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 19900419 under honorable conditions (general) for misconduct due to the commission of a serious offense (A and B). 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 (C and D).

 When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as honorable. A general or 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 retention warnings and two nonjudicial punishment proceedings for violations of Article 86 of the UCMJ. The Applicant’s forfeiture awarded and suspended at NJP on 19871210 was vacated on 19880609 due to his continued misconduct. The Applicant was counseled on four occasions and he was advised that he was not recommended for promotion due to lack of responsibility, failure to meet weight standards and lack of leadership. The Applicant was convicted at special court-martial for violating Article 86 of the UCMJ for his 246-day unauthorized absence, ended by apprehension, and 40 specifications of violating Article 134 of the UCMJ, for obtaining services under false pretenses. The Applicant’s violations of Articles 86 and 134 adjudicated at court-martial are considered serious offenses. 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. Marine Corps and falls far short of that required for an upgrade of his characterization of service. The Board found the Applicant’s discharge proper and equitable. Relief is not warranted.

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. 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. The Board was impressed by the Applicant’s academic accomplishments and did note the Applicant’s volunteer efforts with the Board of Elections. However, after a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that his discharge was appropriate and that his evidence of post-service conduct was found not to mitigate the conduct for which he was discharged. Relief denied.

The following if provided for the edification of the Applicant. The NDRB has no authority to provided additional review of this case since Applicant’s discharge occurred more than 15 years ago. 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 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 ended by apprehension and Article 134, obtain services under false pretenses.
C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .

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 “ http://Boards.law.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:

                  Secretary of the Navy    Council of Review Boards
                   Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023


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