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USMC | DRB | 2005_Marine | MD0501031
Original file (MD0501031.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD05-01031

Applicant’s Request
The application for discharge review was received on 20050601. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. 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 20051013. 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 by reason of misconduct due to the commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application and from an attached document/letter to the Board:

“While I understand what happened to end my military career was wrong, the characterization of my discharge is not an accurate portrayal of my entire time in service and should be upgraded to Honorable to reflect my entire time in service and not only a small portion for three reasons: 1. The military set up my career to fail; 2. One regrettable mistake should not be allowed to overshadow my excellent service; 3. Bad advice received from my command prior to my Non-Judicial Punishment.”

“1. The military set up my career to fail by not providing the resources, training, leadership, or proper environment a new Marine should expect to receive at their first duty station, which any other proper military installation would have provided. Directly after graduation from Computer Sciences School, Quantico, Virginia, I was transferred to one of these commands, Marine Corps Support Activity (MCSA), Kansas City, Missouri. This command should never have had any Marines assigned to it on their first tour of duty. At the time I was assigned to MSCA, between June 1996 through September 1998, MCSA consisted of a detachment of Marines to the Defense Finance and Accounting Service (DFAS). Since MCSA was only a detachment, there was no base and therefore no real base structure to provide the resources, training, and environment necessary for a new Marine to flourish.

The closest military base to MCSA is Fort Leavenworth, Kansas, an Army base located about sixty miles away. The closest Marine Corps base is over 1,700 miles away located in Quantico, Virginia. There was nothing a new Marine would find at a real duty station to help guide and direct him such as no chow hall, no Post exchange, no commissary, no uniform shop, no military tailor, no E-Club, and no firing/rifle range. The few things MCSA did have were grossly inadequate including the medical facilities, training department and grounds, and the satellite AAFES store that was only open for service when Marines were on duty. To be able to visit the AFFES store, Marines had to take time off work or request special permission. Even the barracks that single Marines were assigned to was once condemned and had to be renovated.

 Marines were not treated as Marines at MCSA. They were civilians in uniform because they never trained as Marines, drilled as Marines, shot as Marines, or socialized as Marines. The Marines assigned to MCSA were exempt from qualifying with the rifle because there was no shooting range and exempt from the gas chamber because there was no chamber. The only thing MCSA did together as Marines was a Physical Fitness Test once or twice a year.

As a young Marine straight out of boot camp, I was thrown into this duty station in an unknown city, unknown environment, new to the Marine Corps, and without the support from friends, family, or the Marine Corps, and had to pay rent, pay utilities, and shop for groceries just to survive. If this is what I signed up for I could have gone to college instead. But I chose the Marine Corps because my recruiter told me the “Corps” takes care of its own; but not in this case. The Corps turned its back on me.

I was forced to buy a car while stationed at MCSA because the apartment I could afford to rent was twenty minutes from where I was to report for work and fifteen minutes away from where MCSA was located. There was no other transportation services available to Marines at that time. Even the public transportation was of no benefit to the Marines because of the hours they worked.

By sending a boot Marine to this environment right after training and leaving him to fend for himself with no real structure or support network is like feeding him to the wolves of society, which is exactly what happened in my case. I did the best I could with what little resources and training a nineteen year old Marine had.

2. One regrettable mistake should not be allowed to overshadow my excellent service. I was able to accomplish many great things while serving on active duty. For example, I was assigned to a team that ran PC desktop support for over 1,700 network users to include troubleshooting network, hardware, software, printer, and other general PC related issues. In addition to our normal daily tasks, the team rebuilt an already existing network with new Cat 5 and fiber optic cables from the ground up to form a new industry standard enterprise data network. The team was also responsible for the migration from Windows 3.11 to Windows NT 4.0, and from Banyan Vines email to Lotus cc:Mail. During this time the team would work sixteen to twenty hours a day, six days a week non-stop to complete all our projects on time to the best of our abilities. That network is still in place and working today, providing network services that support DFAS, fellow Marines, and other service personnel. I received a letter of commendation from the Secretary of the Navy regarding my great service and credit to the Marine Corps and the United States Naval Service. I also received the Joint Service Achievement Medal, which is one of the highest non-combat medals any military personnel can receive.

Another example of my excellent service is when I was asked on several occasions to act as an ASL sign language interpreter for DFAS. Since DFAS is a civilian employer and had several hearing-impaired people on staff, I would fill in for last minute meetings and briefings when an interpreter was unavailable. I received special recognition for my ability and willingness to help at a moment’s notice.

Prior to active duty service, I received the Military Order of the Purple Heart in Reserved Officers Training Corps issued by Major (Maj) B_, USAF, ret, for my willingness to go above and beyond the call of duty to make sure the organization ran as smoothly and as efficiently as possible.

My first command at MCSA was under Lieutenant D_ on the PC Network Support Team. After the separation order prior to actual separation, I was transferred to serve under Chief Warrant Officer (CWO) L_ in Logistics. I excelled in both these assignments. The only time my service was questioned was while serving under Staff Sergeant (SSgt) E_ M_ on the Online Programming team

SSgt M_ saw in me the opportunity to seek retribution on my mentor and close personal friend, Private First Class (PFC) Z_. SSgt M_ and PFC Z_ did not get along because he was deemed to be a worthless Marine by SSgt M_. They had a history that predated my assignment to MCSA and I tried not to get involved in their personal dispute. However, SSgt M_ used this opportunity by turning me into a pawn. On several occasions, I was ordered by SSgt M_ not to associate with PFC Z_, and, although I tried to follow his directive, I needed my mentor to follow since no other Marine, including my Staff Sergeant, showed enough of an interest in my personal growth and development to take me under their wing even after several cries for help. One example of SSgt M_ playing me as the pawn was when he charged me with Unauthorized Absence (UA) for seventy-two hours while any other command would never had made those charges. It never would have reached the level it did. Here is what happened:

 I had been very sick for the week and on Friday I finally decided to go to Sick Call since the medical facilities would not be available during the weekend hours. I called my command at 0500 and then waited until 0730 when Sick Call opened. During that time I took more medicine and as a result passed out and ultimately missed Sick Call. I woke up after 1600 and after my command had already left for the weekend.

When SSgt M_ learned I never showed at Sick Call, instead of trying to find me and make sure everything was fine, he waited until Monday morning when I showed up for duty and had me charged with being UA for Friday, Saturday, and Sunday. SSgt M_ never shared a concern as to the health and well being of myself or any other Marine under his command. SSgt M_, during his short-lived investigation, never bothered to find out, or even listen to my explanation. He did not care what happened that weekend. For him, it was an opportunity to punish me for my continued association with PFC Z_.

Another example is when SSgt M_ charged me with cruelty to animals. Again this is another issued that any other command would never have reached the levels this did. And it did this time because SSgt M_ was still using me to get to PFC Z_. Here is what happened:

 My wife had adopted a new dog after my old dog passed away. The young pup was still living in the house because he was too small to live alone outside or in the garage. When my wife and I were not home, we would keep him confined to the pantry area behind the kitchen where the washer and dryer were located. This seemed to be the warmest place in the house. SSgt M_ went as far as to threaten to involve the Command Sergeant Major (SgtMaj) if I did not consent to a voluntary search of my house, which to this day I am still puzzled as to why he ever bothered to do a search unless he was looking for another charge. They found the pup in the pantry where he had been all day and since he was not yet house broken, he made quite a mess on the floor.

And due to a pup that was not house broken, I was deemed unfit and charged with animal cruelty. Nothing could be as far from the truth as this. I loved Bud and Wise, my two dogs. To this day, I have several animals, including fish, turtles, and a dog, all of which are very healthy and happy. This is just another example of SSgt M_ trying to ruin my reputation to hurt PFC Z_.

3. Prior to my Non-Judicial Punishment (NJP) in front of MCSA Commanding Officer, Colonel (Col) O_, I received a counseling from the Command SgtMaj and Command Adjutant, Captain S_. During that counseling I explained the situation with SSgt M_ and the reasons I believe a transfer was in my best interest. I requested a transfer to a different command or a different duty station. The response I received from Capt S_ was that transferring was not a wise option given my record and that in his opinion the best thing to do was to request a separation from the Marine Corps. He said this would allow me the opportunity to start over and that I would be better off without the “military complex” on my shoulder. My request for a transfer was never documented or taken seriously. Instead of trying to help a Maine straighten out his life and turn it around, they turned their backs on me and kicked me out.

At that time I was young impressionable, and naïve. I was never given the opportunity to consult with a member from the Judge Advocate General’s (JAG) team before my NJP. Therefore, when I was asked if I wanted to remain in the Marine Corps by Col O_, I recited what I was advised by the Command SgMaj and Capt S_ and answered “no.” If I had not received such bad advise or was given the opportunity to confirm their statements with a member from the JAG team, I would have never told Col O_ I wanted to separate from the Marine Corps. I believe if I had not separated at that time and under those circumstances, I would have continued to serve on and finish my contract and receive my Honorable Discharge.

Even after the order was given , prior to separation I wrote a letter to the Commanding General of Camp Pendleton, California asking for a reversal of the separation order and explained the circumstances I was under at that time. I never received a response regarding my letter.

Semper Fiedelis”
“In conclusion, ultimately I know what I did was wrong and I am willing to accept responsibility for my actions, but I did what I did because I had to survive in a world, an environment, a command that turned its back on me several times. But in spite of my problems, the characterization of my service does not take into account my entire service. During my term on active duty, I worked twenty hours a day, rebuilt a network from the ground up, assisted my fellow Marines and the hearing-impaired, served to the best of my abilities, and earned one of the highest non-combat awards possible.

Semper Fiedelis”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
The Joint Service Achievement Medal Certificate dtd October 8, 1997
Joint Service Achievement Medal Citation
Certificate of Military Order of the Purple Heart, Leadership Award
Applicant’s DD Form 214 (Department of Labor – 5)
Applicant’s DD Form 215 dtd December 15, 1998

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19950221 – 19951203               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19951204             Date of Discharge: 19980901

 Length of Service (years, months, days):

 Active: 02 08 28
          Inactive: None

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

 Age at Entry: 18

Years Contracted: 4

Education Level: 12                        AFQT: 84

 Highest Rank: Cpl                          MOS: 4067

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.4 (8)                       Conduct: 4.0 (8)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Secretary of the Navy Letter of Commendation, Joint Service Achievement Medal


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 :

960617:  Applicant joined Marine Corps Support Activity (MCSA), Kansas City, Missouri for duty.
980417:  MCSA NJP for violation of UCMJ, Article 86: Unauthorized absence 0725 on 980320 to 0630 on 980323.
         Violation of UCMJ, Article 91: Insubordinate towards an NCO by lying about his medical condition and location.
 Violation of UCMJ, Article 107: Issued false statements concerning his medical conditions.
         Award: Forfeiture of $558.00 pay per month for 1 month (suspended for 6 months), reduction to E-3. Not appealed.

980507:  Nonjudicial punishment imposed and suspended on 980407 hereby vacated and punishment is ordered executed that date. [Note: Administrative error – NJP occurred on 980417 instead of 980407.]

980619:  MCSA NJP for violation of UCMJ, Article 86: Unauthorized absence.
Violation of UCMJ Article 123a: Made check without sufficient funds.
          Award: Reduction to E-2. [No indication of appeal in service record.]

980619:  Counseling concerning lack of responsibilities, failure to obey a lawful order and specifically failure to provide proper care for eight month old beagle puppy, necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

 980706:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to commission of a serious offense. The factual basis for this recommendation was the utterance of a $4000.00 check for deposit from a closed account on 26 May 1998 and subsequent withdrawal of $2700.00 from that account on 29 May 1998.

980706:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to submit a written statement.

980706:  Applicant’s written statement in service record.

980720:  Commanding Officer, Marine Corps Support Activity, recommended to Commanding General, Marine Corps Base, Camp Pendleton, CA, that the Applicant be discharged under other than honorable conditions by reason of misconduct due to commission of a serious offense.

980826:  SJA review determined the case sufficient in law and fact.

980826:  GCMCA, Commanding General, Marine Corps Base, Camp Pendleton, informed the Commandant of the Marine Corps (MMSB) that the Applicant was directed discharged under other than honorable conditions by reason of misconduct due to a commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19980901 by reason of misconduct due to the commission of a serious offense (A) with a service characterization of under other than honorable conditions. 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 (B and C).

The Applicant contends that his discharge was improper because he was not given the opportunity to consult with counsel prior to nonjudicial punishment (NJP) proceedings. The service records show that the Applicant certified by signature that he was given the opportunity to consult with a lawyer, provided by the Government at no cost to him, in regard to pending NJP for violation of Articles 86, 91, and 107 of the UCMJ. The Applicant chose not to exercise his right to refuse NJP. That NJP was conducted on 19980417. Later on 19980618, the Applicant again certified by signature that he was given the opportunity to consult a lawyer in regard to pending NJP for violation of Articles 86 and 123a of the UCMJ. The Applicant chose not to exercise his right to refuse NJP. That NJP was conducted on 19980619. These entries demonstrate that the Applicant was indeed offered counsel prior to both NJP proceedings. In the absence of any credible and substantial contradictory evidence submitted by the Applicant, the Board found that there was no impropriety. Relief on this basis is denied.

The Applicant also contends that his discharge was inequitable because he made one regrettable mistake that should not overshadow his quality service. Whenever a Marine is involved in misconduct due to commission of a serious offense, commanders shall process the Marine for separation, and normally, the characterization of service shall be under other than honorable conditions. While the basis for discharge was commission of a serious offense, the Applicant’s records contain other negative aspects, to include:
•         N onjudicial punishment proceedings on 19980417 for violation of UCMJ Articles 86 Unauthorized absence, 91 Insubordinate conduct toward noncommissioned officer, and 107 False official statements;
•         Nonjudicial punishment proceedings on 19980619 for violation of UCMJ Articles 86 Unauthorized absence and 123a Checks, insufficient funds; and
•         Counseling entry on 19980619 for failure to obey a lawful order.
 These negative aspects served to inform the character of service of under other than honorable conditions, which the Applicant received. It is instructive to note that the Applicant was provided the opportunity to present his case to an administrative separation board, but waived that right, thus accepting the discharge recommended in the letter of notification. The Board concluded that the discharge was equitably characterized. Relief on this basis is therefore denied.

The following is provided for the Applicant’s edification. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question, but the Board found no such impropriety or inequity. 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, and certification of non-involvement with civil authorities 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. Relief on this basis is not warranted.

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 P1900.16E), effective 31 January 1997 until 31 August 2001).

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

C. 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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