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USMC | DRB | 2005_Marine | MD0500271
Original file (MD0500271.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-PVT, USMC
Docket No. MD05-00271

Applicant’s Request
The application for discharge review was received on 20041129. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions). The Applicant requests a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051006. 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 as a Bad Conduct Discharge as a result of a courts-martial (SPCM) - Other.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“Upon completion of my military schooling which, was located at Camp Lejuine N.C. I was then sent to Yuma, AZ. 85369. While there I received several Meritorious Masses. While there I did maintain my job in a professional manner. I am also a Desert Storm Veteran. I played a major part in the Gulf WAR. I was later informed, while at Yuma AZ. that my mother had become very ill. And I did not know which way too turn. So, I went down the wrong road, and started using drugs. (My God Forgive Me). Subsequently, to my family problems, and my drug usage. I was late relieved from my duties, and the U.S.M.C. Under an O.T.H. Other than Honorable Conditions because, of my poor decision making. And because of my Discharge I find it very hart to even find low pay jobs in my country. So I wish to receive an upgrade so that I can at least get into some kind of community college with a grant.”
Applicant’s issues, as stated on the attached document/letter to the Board:

“To whom it may concern,
Sir/Madam; My name is K_ R. T_. My Birth Date is 11-23-70. My SSN is xxx-xx-xxxx. I am writing to you in Regards of my Military Benefits.

Sir/Madam; I’m writing to you in hope that you or someone in your office would, or could help me or someone in your office would, or could help me in this matter, to receive any benefits, or compensation that V.A. feel that is awarded to me. So that I can further my Education in a Community College with A Grant.

Sir/Madam I was Enlisted in the U.S.M.C. in July, of 1990. I completed boot Camp at Parris Island S.C. I was a member of 1ST Battalion, Alpha Company. Upon Completion of boot camp, I was sent to M.C.T., which was located at Camp Lejuine N.C. at (Camp Gieger). Upon Completion of that I was assigned the Job of M.O.S. 1141 Basic Electrician, and Generator Mechanic.

Upon completion of my Military Schooling which, was also located at Camp Lejuine N.C. I was then sent to Yuma, Arizona 85369. While there I received several Meritorious Masses. While there I did Maintain my job in a Professional Manner.

I was later informed, while there that my Mother had become very ill. And I did not Know which way to turn. So, I went down the wrong road, and started using drugs (My God Forgive me).

Subsequently, to my family problems, and my drug usage. I was later Relieved from my duties, and the U.S.M.C. under an O.T.H. Other Than Honorable Conditions because, of my poor decision making.

Therefore, I am REQUESTING for assistance, and to find out the proper procedures to take. So that I can get any assistance, if I can, from your office to help me with my needs. Like: Education, Aide from the V.A. Hospital in case of emergency, Discharge Upgraded from O.T.H. to a General Under Honorable Conditions. I will greatly appreciate, your help in this matter.

THANK YOU
Sincerely,
[signed] K_ R. T_

*If possible, I would like to receive the V.A. Forms that I would need to apply for benefits.
*Please, send me forms to apply for medical help from the V.A. Hospital in case of emergency.
*Please send me any information that will help me in my situation. And send me the Names, Address, and Phone Numbers to anyone that can future help me also:

***Some of the forms that I need are:
Forms DD-124
Forms 21-
Forms DD-293
Forms SF-180


Please take in Consideration that I am also a Desert Storm Veteran…
                                                               Veteran… “

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Letter from Applicant (3 pgs), undtd
Statement in Support of Claim from Applicant (2 pgs), undtd
Letter from Applicant dtd February 25, 2005

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19891227 – 19900723               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19900724             Date of Discharge: 19950421

 Length of Service (years, months, days):

 Active: 04 05 28
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: none
         Confinement:              90 days

 Age at Entry: 19

 Years Contracted: 4

Education Level: 12                                 AFQT: 40

 Highest Rank: LCpl                                  MOS: 1141

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.0 (9)                       Conduct: 3.3 (9)

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): M16 Marksmanship Badge, National Defense Service Medal, Navy Unit Commendation.


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

 BAD CONDUCT DISCHARGE/ As a result of a courts-martial (SPCM) - Other, authority: MARCORSEPMAN Par. 1105.

 Chronological Listing of Significant Service Events :

900724:  Applicant received a moral waiver.

911212:  Battery NJP for violation of UCMJ, Article 86: In that LCpl T_ (Applicant), did on board MCAS Yuma, AZ, on or about 0645, 911104, without authority, fail to go at that time prescribed to his appointed place of duty to wit: Bn Motor Transport Building.
 Violation of UCMJ, Article 86: In that LCpl T_ (Applicant), did at 2dLAAMBn’s site, Baker Peaks, on or about 1200, 911104, without authority, go from his appointed place of duty, to wit: 2dLAAMBn’s working party at Baker Peaks.
Violation of UCMJ, Article 86: In that LCpl T_ (Applicant), did on board MCAS Yuma, AZ, on or about 0700, 911208, to approx 2200, 911208, without authority, fail to report to his appointed place of duty, to wit: ADNCO, bldg 919.
         Award: Forfeiture of $204 per month for 1 month, restriction and extra duty for 14 days. Not appealed.

920210:  Counseling: Advised of deficiencies in performance and conduct. (Lack of promptness on arriving to work. This deficiency has caused you to be late for a numerous amount of time. You have willing left you appointed place of duty without informing your senior of your whereabouts. You have received a minor offense report for wearing your cover backwards and being abrasive with the military police.) Necessary corrective actions explained, sources of assistance provided, and disciplinary and discharge warning issued.

920527:  Battery NJP for violation of UCMJ, Article 86: In that LCpl T_ (Applicant) did, at 1700 920517, absent himself from his appointed place of duty for a period of four hours.
         Award: Forfeiture of $213 per month for 1 month, restriction and extra duty for 14 days. Not appealed.

920629:  Counseling: Advised of deficiencies in performance and conduct. (Recent NJP for lack of initiative, attention to duty, and questionable integrity. You are a perfect example of someone who will only do what he is told, when told to do it, and how to do it providing there is no room for misinterpretation. This type of attitude and work performance will not be tolerated.) Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

921203:  Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of Jan 93 to Mar 93 because of pending civil court conviction. Applicant chose not to make a statement.

930714:  Special Court Martial [trial date 930714]
         Charge I: violation of the UCMJ, Article 86, (2 specifications).
         Specification 1: In that LCpl K_ R. T_(Applicant), U.S. Marine Corps, while on active duty, did, on board MCAS, Yuma, Arizona, at or about 1030 on 26 April 1993, without authority, failed to go at the time prescribed to his appointed place of duty, to wit: the unit armory located in building 491.
 Specification 2: In that LCpl K_ R. T_(Applicant), U.S. Marine Corps, while on active duty, did, on board MCAS, Yuma, Arizona, at or about 1240 on 26 April 1993, without authority, absent himself from his place of duty at which he was required to be, to wit: the Engineer section, building 3203, on board the Cannon Air Defense Complex, County Highway 14, Yuma, Arizona, and did remain so absent until at or about 0730 on 27 April 1993.
          Charge II: violation of UMCJ, Article 91, (9 specifications).
 Specification 1: In that LCpl K_ R. T_(Applicant), U.S. Marine Corps, while on active duty, did, on board MCAS, Yuma, Arizona, on or about 6 May 1993, assault Corporal J_ G. R_, a noncommissioned officer who was then in the execution of his office, by grabbing him on the arm with his hand.
Specification 2: In that LCpl K_ R. T_(Applicant), U.S. Marine Corps, while on active duty, having received a lawful order from Corporal R_ B_, a noncommissioned officer, then known by the said Lance Corporal T_ (Applicant) to be a noncommissioned officer, to “Put the 5 gallon cans in the Hazardous Material pit”, an order which it was his duty to obey, did at the Cannon Air Defense Complex, County Highway 14, Yuma, Arizona, on or about 23 April 1993, willfully disobey the same.
Specification 3: In that LCpl K_ R. T_(Applicant), U.S. Marine Corps, while on active duty, having received a lawful order from Corporal J_ G. R_, a noncommissioned officer, then known by the said Lance Corporal T_ (Applicant) to be a noncommissioned officer, to “start moving his belongings from one room to another” an or which it was his duty to obey, did at Barracks 930, on board MCAS, Yuma, Arizona, on or about 6 May 1993, willfully disobey the same.
Specification 4: In that LCpl K_ R. T_(Applicant), U.S. Marine Corps, while on active duty, having received a lawful order from Corporal J_ G. R_, a noncommissioned officer, then known by the said Lance Corporal T_ (Applicant) to be a noncommissioned officer, to “turn his music volume down” an or which it was his duty to obey, did at Barracks 930, on board MCAS, Yuma, Arizona, on or about 6 May 1993, willfully disobey the same.
Specification 5: In that LCpl K_ R. T_(Applicant), U.S. Marine Corps, while on active duty, having received a lawful order from Corporal J_ G. R_, a noncommissioned officer, then known by the said Lance Corporal T_ (Applicant) to be a noncommissioned officer, to “hang up the phone” an or which it was his duty to obey, did at Barracks 930, on board MCAS, Yuma, Arizona, on or about 6 May 1993, willfully disobey the same.
Specification 6: In that LCpl K_ R. T_(Applicant), U.S. Marine Corps, while on active duty, having received a lawful order from Staff Sergeant R_ G. G_, a noncommissioned officer, then known by the said Lance Corporal T_ (Applicant) to be a noncommissioned officer, to “hang up the phone” an or which it was his duty to obey, did at Barracks 930, on board MCAS, Yuma, Arizona, on or about 6 May 1993, willfully disobey the same.
Specification 7: In that LCpl K_ R. T_(Applicant), U.S. Marine Corps, while on active duty, having received a lawful order from First Sergeant W_ S. W_, a noncommissioned officer, then known by the said Lance Corporal T_ (Applicant) to be a noncommissioned officer, to “completely move from Room 116 to Room 117 and to clean both rooms” an or which it was his duty to obey, did at Barracks 930, on board MCAS, Yuma, Arizona, on or about 6 May 1993, willfully disobey the same.
Specification 8: In that LCpl K_ R. T_(Applicant), U.S. Marine Corps, while on active duty, on or about 23 April 1993, was disrespectful in language toward Lance Corporal R_ B_, a noncommissioned officer, then known by the said Lance Corporal T_ (Applicant) to be a superior noncommissioned officer, who was then in the execution of his office, by saying to him ” I ain’t f_ing doing that, boy, or words to that effect.
Specification 9: In that LCpl K_ R. T_(Applicant), U.S. Marine Corps, while on active duty, on or about 23 April 1993, was disrespectful in language toward Lance Corporal J_ G. R_, a noncommissioned officer, then known by the said Lance Corporal T_ (Applicant) to be a superior noncommissioned officer, who was then in the execution of his office, by calling him a ”m_ f_er”, or words to that effect.
          Charge III: violation of UCMJ, Article 92,
 Specification: In that LCpl K_ R. T_(Applicant), U.S. Marine Corps, while on active duty, having knowledge of a lawful order issued by his Commanding Officer, MCAS, Yuma, Arizona, to wit: Station Order 11000.3c, dated 24 August 1992, an order which it was his duty to obey, did at Barracks 930, on board MCAS, Yuma, Arizona, on or about 5 May 1993, fail to obey the same by wrongfully having a female in Room 116.
Charge IV: violation of UCMJ, Article 107,
Specification: In that LCpl K_ R. T_(Applicant), U.S. Marine Corps, while on active duty, on or about 23 April 1993, with intent to deceive, make to Corporal J_ G. R_, an official statement, to wit: “This is a business call”, which statement was totally false, and was then known by the said LCpl K_ R. T_(Applicant) to be so false.
Additional Charge I: violation of UCMJ, Article 134,
Specification: In that LCpl K_ R. T_(Applicant), U.S. Marine Corps, while on active duty, having been restricted to the limits of the “A” Battery Barracks (Building #930), the Station Dining Facility, the Battalion Aid Station, and the Station Chapel, Marine Corps Air Station, Yuma, Arizona, by a person authorized to do so, did, in Yuma, Arizona, on or about 14 June 1993, break said restrictions.
          Additional Charge II: violation of UCMJ, Article 92,
         Specification: In that LCpl K_ R. T_(Applicant), U.S. Marine Corps, while on active duty, having knowledge of a lawful order issued by his Commanding Officer, 2d Light Antiaircraft Missile Battalion, 3d Marine Aircraft Wing, FMFPac, Marine Corps Air Station, Yuma, Arizona, to wit: Instructions for Pretrial Restraints, 5812 LEG dated 7 May 1993, an order which it was his duty to obey, did, at Barracks #930, on board Marine Corps Air Station, Yuma, Arizona, on or between 18 June 1993 and 23 June 1993, on various occasions, fail to obey the same by wrongfully having a female visitor in barracks room #117.
 Additional Charge III: violation of UCMJ, Article 112a,
Specification: In that LCpl K_ R. T_(Applicant), U.S. Marine Corps, while on active duty, on or between 11 June 1993 and 14 June 1993, wrongfully use amphetamine/methamphetamine.
          Findings: to Charge I and specifications 1, 2 and 3 thereunder, withdrawn; to Charge II and specifications 1, 2, 4, 7 (except for the words “to completely move from room 116 to room 117 and “ of the excepted words, Not Guilty, of the specification as excepted, Guilty), and 9 thereunder, guilty; specifications 3, 5, 6, and 8 thereunder, withdrawn; to Charge III and specification thereunder, guilty. To Additional Charge I and the specification thereunder, guilty; to Additional Charge II and the specification thereunder, guilty; to Additional Charge III and the specification thereunder, guilty.
         Sentence: Confinement for 90 days, reduction to E-1, Bad Conduct discharge.
         CA 940222: Findings of Chg II Spec 4, Add Chg I, and Add Chg I Spec disapproved. Chg IV and Chg IV Spec dismissed. Only so much of the sentence as provides for a BCD and confinement for 90 days is approved and, except for the BCD, will be executed.
        
930714:  Joined the Base Brig, Marine Corp Base, Camp Pendleton, California, for confinement.

930920:  Applicant requested voluntary appellate leave including leave without pay pending completion of appellate review of special court-martial conviction, which included a punitive discharge.

931004:  Counseling: Advised of deficiencies in performance and conduct. (Specifically your disregard for Marine Corps Orders pertaining to wrongful visitation by civilian females in your barracks room. Additionally your general lackadaisical attitude and disregard for military authority you have displayed while awaiting final approval of appellate leave will not be tolerated. Further violations of the UCMJ will result in additional disciplinary action to include possible new Courts Martial proceedings and pre-trial confinement, and legal hold beyond EAS).

931004:  Battalion NJP for violation of UCMJ, Article 86: In that LCpl T_ (Applicant) did on or about 21 Sep 93, without authority, fail to go at the prescribed time to his appointed place of duty, to wit: Alpha Btry, 2d LAAMBn.
 Violation of UCMJ, Article 92: In that LCpl T_ (Applicant), did, on board MCAS Yuma, AZ on or about 25 Sep 93, violate a lawful general order to wit: paragraph 1004.7A, Marine Corps order P1020.34 DATED $ Jan 1988, by wrongfully wearing five earrings.
         Award: Forfeiture of $456 per month for 2 months, 45 days restriction, 30 days extra duty, reduction to E-2. Appealed 931004.

931015:  Applicant authorized appellate leave.

 940520:  NC&PB clemency not granted, VA treatment offered.

 950127:  NMCCCA: Affirmed findings and sentence.

950420:  Appellate review complete.

950421:  SSPCMO: Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19950421 with a bad conduct discharge which was the sentence adjudged by a properly convened special court-martial. The convening and appellate review authorities subsequently approved the sentence (A and B). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the Applicant’s issues were insufficient to merit clemency (C).

The Applicant contends an upgrade is warranted considering his service in Desert Storm and competency in his military occupational specialty. While the Applicant feels that the positive aspects of his service bear consideration, the action of the NDRB is restricted to upgrades based on clemency when a discharge is adjudged by a court-martial case. Clemency is an act of leniency that reduces the severity of the punishment imposed. Relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. After a thorough review of the Applicant’s record and issues submitted, the Board determined that clemency is not warranted. The sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed. Relief denied.

The Applicant desires an upgrade to general (under honorable conditions) in order to receive Veterans Administration benefits, pursue education, and secure employment. The Applicant is advised that t he Veterans Administration determines eligibility for post-service benefits. The Naval Discharge Review Board has no authority to upgrade a discharge for the sole purpose of obtaining Veterans’ benefits or enhancing employment and educational opportunities. These issues do not serve to provide a foundation upon which the Board can grant relief. Therefore, relief on this basis is denied.

The following is provided for the Applicant’s edification. While 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 Marine Corps, the Board is authorized 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. 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, verifiable employment records, documented community service, certification of non-involvement with civil authorities, and credible evidence of a substance free lifestyle are examples of documentation that should have been provided to receive consideration for relief based on post-service conduct. At this time, the Applicant did not provided any post-service documentation for consideration. No relief is granted on this basis.

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 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURTS-MARTIAL , 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 91 Insubordinate conduct toward noncommissioned officer; Article 92 Failure to obey order or regulation; 112a Wrongful use of controlled substance.
C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 205(2), Jurisdictional Limitations Authority for Review of Discharges.

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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