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USMC | DRB | 2005_Marine | MD0501087
Original file (MD0501087.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD05-01087

Applicant’s Request
The application for discharge review was received on 20050616. 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 personal appearance hearing discharge review before the Board in the Washington, D.C. Metropolitan area. The Applicant did not designate a representative on the DD Form 293.

Decision

A personal appearance hearing discharge review was conducted in Washington, D.C. on 20060329. 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 3 to 2 that the character of the discharge shall not change. The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to a pattern of misconduct.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues, as stated

Applicant’s issues, as stated on the application:

“The discharge classification was disproportionately severe to the event that preceded it. Additionally, it ignores years of positive combat and peace time service.”

Additional issues submitted by the Applicant at the time of the personal appearance hearing:

“ While I have endeavored to be of service since my discharge, its characterization as other than honorable casts a very long shadow over my life. An upgrade to general under honorable circumstances recognizes the effort I have made in the intervening 14 years to be a good parent, student, citizen, neighbor, worker and friend.”
Documentation
Only the service record book and medical record was reviewed. The Applicant did not provide additional documentation for the Board’s consideration.

Additional documentation provided by the Applicant at the time of the personal appearance hearing:

Unofficial College Transcript, Smith College, issued June 9, 2005
Certificate of Appreciation, Expungement Summit 2005
Email from Applicnat to Mr. V_, dtd December 8, 2005
Transcript, Howard University School of Law, issued February 10, 2006
3 Newspaper Articles, Daily Hampshire Gazette, written by the Applicant (5 pages)

Additional documentation provided by the Applicant subsequent to the personal appearance hearing:

Letter of reference from R_ S. M_, dtd April 4, 2006 (2 pgs)
Letter of reference from M_ M_ (email, not signed), dtd April 3, 2006
Letter of verification of employment from J_ O_ (email, not signed) dtd March 31, 2006
Instructor Certificate, Water Safety Instructor, dtd April 29, 2004
2 pages of photographs
Letter from S_ J. P_, AA Sponsor, dtd April 7, 2005
Letter from E_ A. G_, ( not dated) (4 pgs)
Copy of handwritten note from W_ T_ Jr, dtd April 3, 2006
Copy of handwritten note from M_ T_, dtd April 3, 2006
Letter from F_C., dtd April 2, 2006
Letter from L_ F. M_, dtd March 30, 2006
Copy of Applicant’s Fall 2006 Schedule, Howard University
Email re: legal clerkship at Congressional Research Service. dtd December 21, 2005
Email re: the New La Alianza Latino Law Society Executive Board 2006-2007
Copy of Applicant’s Fall 2006 Student Detail Schedule, printed March 24, 2006 (2 pgs)
Copy of congratulations card to Applicant
Copy of announcement of Amidon Elementary School PTA Meeting, dtd November 20,   2005
Copy of statement of professional services for the Applicant, provided by the Women’s    Center, dtd November     2, 2005
Copy of statement of professional services for the Applicant’s son, provided by the Women’s      Center, dtd November 2, 2005
Copy of Page 1 of 2, The Office of Development and Alumni Relations, thank you
Copy of agenda for Amidon PTA Meeting, dtd October 20, 2005
Copy of 1 page from “The Amidonian”, monthly newsletter for parents and community of       Amidom Elementary, October 2005
Letter from Applicant to the Embassy of the Czech Republic, dtd August 17, 2005
Copy of Howard University School of Law, class description for legal methods/civil rights
Copy of Howard University School of Law, Welcome and Pinning Ceremony, dtd August 12,    2005 (2 pgs)
Letter from M_A.M_, Smith College, re: Dean’s List, dtd July 5, 2005
Copy of Applicant’s completed form from Howard University, Office of Financial Aid, dtd          May 12, 2005
Copy of note from J_ L. W_, dtd May 2005
Letter of Acceptance to Howard University, School of Law, dtd May 4, 2005
Letter from Harvard Law School, dtd April 21, 2005
Letter of Acceptance to Howard University, School of Law, dtd April 19, 2005
Graduation announcement from Smith College, dtd May 15 th , 2005
Copy of thank you note from E_, (not dated)
Official Transcript, Smith College, issued August 4, 2005
Note from M_S_, dtd April 12 (no year)
Letter of congratulations from L_ W. D_, dtd April 11, 2005
Letter of thanks from Executive Director, Hampshire County Chapter of the American Red   Cross, dtd November 22, 2005
Letter of Appointment to Smith College Civil Rights Board, dtd September 3, 2004
1 page from Smith College, Procedures and Guidelines, Civil Rights Board (no date)
1 page listing the Civil Rights Board Membership 2004-2005
Miami Dade College, certificate of completion of “Kids in Divorce Succeeding” for          Applicant’s son, dtd August 28, 2004
Miami Dade College, certificate of completion of “Children of Divorcing Parents” for the   Applicant, dtd August 31, 2004
Letter of congratulations, Smith College Dean’s List, 2003-2004, dtd June 25, 2004
Letter from C_ (no last name), dtd April 5, 2004
Letter from Windsor Highschool, K_E_ and D_S_, dtd March 5, 2004
Letter of awarding of Putnam Scholarship Fund, dtd June 16, 2003
Letter of verification of employment, Oct 2002- May 2003, from R_ W. K_, dtd May 20,     2003
3 pages from “accent Miami” (magazine), issue 2, 2002
Letter of support from Florida International University, P_M.C_, dtd November 7, 2002
4 page newspaper article, “The Space for Artist to Grow”, dtd November 7, 2002
Article from miaminetimes.com, dtd August 29, 2002
Newspaper article
1 page www.miami.com , printed August 28, 2002 (written in Spanish)
Letter to Applicant from the Director, Miami Corrections and Rehabilitation Department, dtd      February 25, 2002 (2 pgs)
Letter of congratulations from President, Miami-Dade Community College, dtd October 23,          2001
Advertisement for Miami-Dade Community College
Article from the Kansas City Star, January 1, 2000
6 Articles, written by the Applicant, for the Kansas City Star
Certificate from Miami Beach Senior High School, presented to the Applicant, dtd November        5, 1998
3 Articles written by the Applicant for The Miami Herald
Miami-Dade Community College certificate of Transfer Scholarship Award, dtd April 24,    1997
Miami-Dade Community College Honors Day 1997 Program, (not dated, 2 pgs)
Certificate, “The USA Today/Community Colleges 1997 All-Florida Academic Team”, for        academic years 1997-1998, 1998-1999
Newspaper article, April 6, 1997
Letter from Miami-Dade Community College, Foreign Languages and International Studies,   O_ A. L_, dtd January 10, 1997
Letter of recommendation from Miami-Dade Community College, Foreign Languages and        International Studies, A_R_, dtd January 10, 1997
Certificate of Applicant’s induction to Phi Theta Kappa, dtd October 1, 1996
4 pages from Volume I of “Akkadian” , August 1996
Article from El Nuevo Herald, dtd July 25, 1996
Letter from The Miami Herald, D_ L_, dtd July 6, 1996
Newspaper article, (not dated)
Certificate of completion, Smith College: Community College Connections, dtd July 3, 1996
Newspaper article (written in spanish)
Letter from National Hispanic Scholarship Fund, E_Z. R_, dtd March 28, 1996
Letter from The National Dean’s List, P_ C. K_, dtd May 22, 1996
Congratulatory note from E_J.P_ (not dated)
Letter from National Hispanic Scholarship Fund, E_Z. R_, dtd May 1, 1996
Letter from Smith College, dtd April 17, 1996 (2 pgs)
Letter of congratulations from E_J.P_, District President, Miami-Dade Community College,
         dtd April 9, 1996
Official Transcript, Miami-Dade Community College, issued February 11, 2003
Copy of Admissions Testing Program, The College Board, dtd April 11, 1992
Copy of Western Union Mailgram, dtd December 26, 1988
PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19880310 – 19880410               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19880411             Date of Discharge: 19920630

 Length of Service (years, months, days):

 Active: 04 02 19
         Inactive: None

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

 Age at Entry: 18

Years Contracted: 5

 Education Level: 12                                 AFQT: 95

 Highest Rank: Cpl                                   MOS: 2841

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.4 (11)                      Conduct: 4.2 (11)

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): National Defense Service Medal, Sea Service Deployment Ribbon, South Asia Service Medal (3), Kuwait Liberation Medal.


Character, Narrative Reason, and Authority of Discharge (at time of issuance):
 UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Pattern of misconduct (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.3.

 Chronological Listing of Significant Service Events :

890320:  NJP for violation of UCMJ, Article 134: During the time of Oct 88 until Nov 88 did fraternize with a Staff noncommissioned officer at StudCoA, ScolsBn, MCCES, MCAGCC.
 Award: Forfeiture of $407.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. Reduction to E-2 suspended for a period of 6 months unless sooner vacated will be remitted without further action. Not appealed.
900418:  BAS, 1 st Radio Battalion, request for examination sent to Mental Health Clinic, Kaneohe Branch, NRMC Hawaii, Pearl Harbor, HI. Applicant request to be seen at Mental Health Clinic for counseling concerning stress and mental anguish she is experiencing because of an investigation of sexual harassment charges.
         Provisional Diagnosis: Positive anxiety disorder/adjustment disorder.

900504:  Mental Health Clinic, Kaneohe Branch, NRMC Hawaii, Pearl Harbor, HI. Applicant examined by CDR H_, MC, USNR.
         Diagnosis: Other Interpersonal Problem. Psychologically fit for duty. She (Applicant) doesn’t want counseling on following, no follow up. Abuse explained to patient, she understood.

900523:  Counseling: Advised of deficiencies in performance and conduct (Lack of proper respect to Marine senior in rank and position.), necessary corrective actions explained, sources of assistance provided, and disciplinary and discharge warning issued.

900604:  NJP for violation of UCMJ, Article 86: At 1 st RadBn, MCAS, KANHI, 1048, 900416, fail to go to Bn Aide Station.
 Violation of UCMJ Article 134: At 1 st Radio Bn, MCAS, KANHI, executed a false statement “I need to go to sickbay to renew a light duty chit”, which statement did not then believe to be true.
         Award: Forfeiture of $207.00 per month for 1 month, restriction and extra duty for 14 days. Forfeiture of $207.00 is suspended for a period of 2 months, at which time, unless sooner vacated will be remitted without further action. Not appealed.

900627:  First Endorsement of Capt L_ Investigation of Sexual Harassment dtd 26 Jun 90. Commanding Officer, 1 st Radio Battalion, Fleet Marine Force Pacific, comments: “Concur with the findings of fact, opinions, and recommendations, except for the third recommendation. LCpl G_ (Applicant) has already been evaluated and found fit for duty.”

910501:  Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of May because of poor job performance and poor attitude when working with fellow Marines in the work section. Applicant chose to make a statement.
920221:  NJP for violation of UCMJ, Article 91: Disobeyed a lawful order by a SNCO.
 Violation of UCMJ, Article 134: Destroying a public record.
          Award: Forfeiture of $501.00 per month for 2 months, reduction to E-3. Appealed 920303. Appealed denied 920309.

920323:  Commanding Officer, Headquarter and Service Company, 1 st Radio Battalion, Fleet Marine Force Pacific, recommended Applicant’s discharge under other than honorable conditions due to frequent involvement with military authorities, continued pattern of misconduct and disregard for Marine Corps regulations and standards.

920417:  Counseling: Advised of deficiencies in performance and conduct (Your frequent involvement with the military authorities.), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action. Applicant chose to make a statement.

920512:  Applicant notified of intended recommendation for discharge with a characterization of service as under other than honorable conditions by reason of misconduct due to a pattern of misconduct. The factual basis for this recommendation was three nonjudicial punishments.

920512:  Applicant advised of rights and having consulted with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation and the right to submit written statements in rebuttal to this proposed separation, in lieu of a hearing.

920512:  Commanding Officer, Headquarter and Service Company, 1 st Radio Battalion, Fleet Marine Force Pacific, recommended Applicant’s discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

950512:  Applicant submitted statement, “APPEAL OF CHARACTERIZATION OF ADMINISTRATIVE SEPARATION” to Commanding General, 1 st Marine Expeditionary Brigade, MCAS Kaneohe Bay, HI.

920605:  Commanding Officer, 1 st Radio Battalion, Fleet Marine Force Pacific, recommends approval of the recommendation for the Applicant’s discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct. CO’s comments: “ Lance Corporal G_’s (Applicant) allegations of sexual harassment (enclosure 6) alleged to have occurred during May 1990, were thoroughly investigated by my predecessor. The investigation was completed on 26 June 1990, (enclosure 8), and it was determined that her allegations were without merit. This proposed discharge is solely based on her continuing record of misconduct.”

920610:  SJA review determined the case sufficient in law and fact.

920616:  GCMCA, Commanding General, 1 st Marine Expeditionary Brigade directed the Applicant's discharge under other than honorable conditions by reason of misconduct duet to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19920630 by reason of misconduct due to a pattern of misconduct (A and B) 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 (C and D).

The Applicant contends that “the discharge classification was disproportionately severe to the event that preceded it” and that “it ignores years of positive combat and peace time service”. When the service of a member of the U.S. Marine Corps has been honest and faithful, it is appropriate to characterize that service as honorable. An 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 3 nonjudicial punishment proceedings for violations of Articles 86, 91, and 134 (3 specifications) of the UCMJ. In addition, the Applicant received a retention warning and a non-recommendation for promotion. The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her willful failure to meet the requirements of her contract with the U.S. Marine Corps and falls far short of that required for an upgrade of her characterization of service. 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. During the personal appearance hearing, the Presiding Officer provided the Applicant with an opportunity to obtain additional documentation of her post-service conduct. The Applicant was given 2 weeks to provide the Board with 9 additional documents, to include a criminal records check and a copy of the letter appointing her to the Honors Board at Smith College. The Applicant did not provide all these documents. After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate. While the Board acknowledges the Applicant’s post-service accomplishments, the evidence of post-service conduct was found not to mitigate the conduct which precipitated the discharge. Relief denied.




The following is provided for the edification of the Applicant. The Applicant has exhausted her opportunities for review by the NDRB. 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 she desires further review of her case.


 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 91, willfully disobey a noncommissioned officer, Article 134 false swearing, and Article 134, public record, destroying.
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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