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USMC | DRB | 2006_Marine | MD0600030

Original file (MD0600030.rtf) Auto-classification: Denied

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

FOR OFFICIAL USE ONLY

ex-Cpl, USMC
Docket No. MD06-00030

Applicant’s Request

The application for discharge review was received on 20050927. 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 20060830 . 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 and reason for discharge shall not change. The discharge shall remain General (Under 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 to the Board:

“I request that my discharge of General Under Honorable be upgraded to Honorable. I put nearly 5 years into the Marine Corps. While I was serving I was promoted to the rank of Lance Corporal and Corporal meritoriously. The reason that I was separated was due to me disobeying a direct order. The order was to stay away from an officer of the Navy. One who had nothing to do with my promotion or pro’s and con’s. I was given this order on mere allegations. The situation was much more than they investigated and proved it to be. It was in fact a homosexuality issue. I feel I was given this order unjustly. The command simply ignored the fact that I had been receiving threatening emails and phone calls. I request this discharge be upgraded because for one, instead of me getting out for who I really am they made it looked like I was a bad Marine. In addition, the investigation was not complete. There was proof that it was a homosexuality case; however, they chose to ignore the facts. They allowed me to be harassed by an unknown person and did not investigate that. Besides this incident I put forth 110% effort in everything I did for the Marine Corps. It was my personal life-style that did not agree with the Marine Corps and I do not feel that my future should be held back because of who I truly am. I am currently employed full-time as a Corrections Officer and am attempting to go to college; however, without the use of my G.I. Bill it is nearly impossible. I put 5 years into the Marine Corps and I feel the least that I deserve is the correct discharge so that I may pursue better things. I was also supposed to be promoted to Sgt but was denied. I feel I have been punished enough for what I have done. The Officer involved also received a General Under Honorable. The difference is that this Officer has already received her education I would like to be provided the same opportunity. Thank you for your consideration.”

Applicant’s Remarks: Taken from the DD Form 293 to the Board:

“I was punished many ways for this incident. I feel that for the incident that occurred I was being punished for what it truly was (Homosexual incident) but they were hiding the facts. I was removed out of my duties as a Military Police Investigator because of an ICE (Interactive Customer Evaluation) complaint. Then I was placed as a Military Police Officer and removed from my duties as a Barracks NCO. I had move barracks rooms multiple times. I was then removed from my duties as a Military Officer all together and placed in a NBC position, of which I knew nothing about. Again, I put 110% effort into those duties. I was placed on liberty risk where I had to stay in utilites and stay on base for 2 months, checking in every two hours until 2100 every night. In addition to all of this I was receiving threatening emails and phone calls. I told my command about these and the only thing they had to say was that they were probably coming from the husband of the officer I was with. I feel I have served my country honorably and would like to be recognized as such.”

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

U. S. Marine Corps Criminal Investigation Division Report, dtd June 12, 2003 (2 pages)
Applicant’s Charge sheet, dtd June 19, 2003
Proficiency and Conduct Marks Recommendation Sheet, covering the period from July 01, 2001 to December 02, 2001 (2 pages)
Promotion Roster , dtd January 29, 2003

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

         Inactive: USMCR (DEP)    19981007 – 19990705               COG
         Active: USMC              19990706 – 20021010               HON

Period of Service Under Review :

Date of Enlistment: 20021011             Date of Discharge: 20040210

Length of Service (years, months, days):

Active: 0 1 0 3 30
         Inactive: None

Time Lost During This Period (days):

         Unauthorized absence: None
         Confinement:              None

Age at Entry: 21

Years Contracted: 4 (9 months extension)

Education Level: 12                                 AFQT: 61

Highest Rank: Cpl                                   MOS: 5811

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency: 4. 6 ( 2 )                       Conduct: 4. 4 ( 2 )

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Rifle Marksman Badge, Pistol Sharpshooter Badge, Ma rine Corps Good Conduct Medal, Navy/Marine Corps Overseas Service Ribbon (3), National Defense Service Medal, Letter Of Appreciation, Certificate of Commendation (2), Meritorious Mast (3).

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.6.

Chronological Listing of Significant Service Events :

021011: Reenlisted this date for a term of 4 years.

030516: Commanding officer Headquarters and Headquarters Squadron, authorizes an affidavit for search authorization for S_ E. S_ ’ s (Applicant) barracks room.

030619: Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 92:
Specification 1: In that Corporal S_ E. S_ (Applicant), Headquarters and Headquarters Squadron, MCAS Iwakuni, Japan, on active duty, having knowledge of a lawful order issued by Major J_ D. F_, Provost Marshal MCAS Iwakuni, Japan, cease all contact with Lieutenant Commander J. S. T_, an order which it was her duty to obey, did, on board Marine Corps Air Station Iwakuni, Japan, on or about March 2003 , fail to obey the same by wrongfully continuing contact with Lieutenant Commander J. S. T_, U. S. Navy.
         Specification 2: In that Corporal S_ E. S_ (Applicant), Headquarters and Headquarters Squadron, MCAS Iwakuni, Japan, on active duty, did, on board Marine Corps Air Station Iwakuni, Japan, on or about March 2003 , violate a lawful general regulation, to wit: Article 1165, U. S. Navy Regulations, dated 900914 , by wrongfully fraternizing with Lieutenant Commander J. S. T_.
         Specification 3: In that Corporal S_ E. S_ (Applicant), Headquarters and Headquarters Squadron, MCAS Iwakuni, Japan, on active duty, having knowledge of a lawful order issued by Lieutenant Colonel T. C. A _ , to wit: Military Protective Order, dated 030516 , an order which it was her duty to obey, did, on board Marine Corps Air Station Iwakuni, Japan, on or about dated 030516 , fail to obey the same, by wrongfully continuing contact with Lieutenant Commander J. S. T_, U. S. Navy.

030807: Summary Court-Martial.
         Charge: violation of the UCMJ, Article 92:
         Specification 1: In that Corporal S_ E. S_ (Applicant), Headquarters and Headquarters Squadron, MCAS Iwakuni, Japan, on active duty, having knowledge of a lawful order issued by Major J_ D. F_, Provost Marshal MCAS Iwakuni, Japan, cease all contact with Lieutenant Commander J. S. T_, an order which it was her duty to obey, did, on board Marine Corps Air Station Iwakuni, Japan, on or about March 2003 , fail to obey the same by wrongfully continuing contact with Lieutenant Commander J. S. T_, U.
         S. Navy. Plea : Guilty                      Finding : Guilty
         Specification 2: In that Corporal S_ E. S_ (Applicant), Headquarters and Headquarters Squadron, MCAS Iwakuni, Japan, on active duty, did, on board Marine Corps Air Station Iwakuni, Japan, on or about March 2003, violate a lawful general regulation, to wit: Article 1165, U. S. Navy Regulations, dated 900914 , by wrongfully fraternizing with Lieutenant Commander J. S. T_. Plea : Guilty         Finding : Guilty.
         Specification 3: In that Corporal S_ E. S_ (Applicant), Headquarters and Headquarters Squadron, MCAS Iwakuni, Japan, on active duty, having knowledge of a lawful order issued by Lieutenant Colonel T. C. A _ , to wit: Military Protective Order, dated 030516 , an order which it was her duty to obey, did, on board Marine Corps Air Station Iwaku ni, Japan, on or about dated May 2003, fail to obey the same, by wrongfully continuing contact with Lieutenant Commander J. S. T_, U. S. Navy.
         Plea : Not Guilty.                 Finding : Not Guilty
         Sentence: Restriction for 30 days to place of residence, work, worship, and mess.        CA action 030902: Sentence approved and ordered executed.

030906: Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board. Applicant desires to obtain copies of documents that will be forwarded to the Commander, Marine Corps Bases Japan.

030916: Applicant notified of intended recommendation for discharge with characterization of service of General (under honorable conditions) by reason of commission of a serious offense. T he least favorable characterization of service which the Applicant may receive is an under other than honorable (OTH). The factual basis for this recommendation was due to the Applicant’s violation of Article 92 of the UCMJ.

030916: Commanding Officer, Headquarters and Headquarters Squadron, recommended to Commander, Marine Corps Bases Japan , that the Applicant be discharged with a general (under honorable conditions) by reason of misconduct due to commission of a serious offense.

0309 2 9 : Commanding Officer, Marine Corps Air Station Iwakuni, forwards Applicant’s administrative Separation package to Commander Marine Corps Bases Japan concurring with the recommendation of Commanding Officer, Headquarters and Headquarters Squadron.

031114: An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to commission of a serious offense, that such misconduct warranted separation, and recommended discharge with a general (under honorable conditions).

031203: Commanding Officer, Headquarters and Headquarters Squadron, to Commander, Marine Corps Bases Japan , concurred with the recommendation of the Administrative Discharge Board, t hat by a majority vote, concluded that Cpl S_ (Applicant), committed misconduct due to a pattern of misconduct and that the discharge should be General (under honorable conditions).

040120: SJA review determined the case sufficient in law and fact.

040123: Commanding General, Marine Corps Base, Camp Smedley D. Butler, advise d the Commandant of the Marine Corps (MMSB) , that the Applicant will be discharged with a general (under honorable conditions) by reason of misconduct due to commission of a serious offense . The Commanding General, Marine Corps Base also authorized the assignment of a RE-4 reenlistment code and a separation code of GKQ 1 .

040210: DD 214: Applicant discharged this date , with a characterization of service of general (under honorable conditions) by reason of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040210 by reason of misconduct due to the commission of a serious offense (A and B) with a service characterization of general (under honorable conditions). After a thorough review of the available 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 she was not a bad Marine, that she served her country honorably and that her separation due to disobeying a direct order was unjust. The Board advises the Applicant that w hen the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. A general 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 a Summary Court –Martial for VUCMJ Article 92, failure to obey a lawful order. The NDRB further advises the Applicant that certain serious offenses warrant separation from the Navy in order to maintain proper order and discipline. A violation of Article 92 is considered a serious offense and a punitive discharge is authorized if adjudged at a special or general court-martial. 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. Navy and falls far short of that required for an upgrade of her characterization of service. Relief is not warranted.

The applicant contends that it was not her performance but her personal life-style (homosexuality) that did not agree with the Marine Corps and implies her discharge should reflect her honorable service. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that homosexuality was the reason for her discharge. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. The record of evidence does show that the Applicant violated a lawful order from her commanding officer to cease all contact with Lieutenant Commander J_ S. T_, USN. The Board further advises the applicant that SECNAV policy on Fraternization states that personal relationships between officer and enlisted members that are unduly familiar and that do not respect differences in grade or rank are prohibited. Such relationships are prejudicial to good order and discipline and violate long standing traditions of naval service. In the Applicant’s case, the Board could discern no impropriety or inequity in the Applicant’s discharge Relief denied.

The Applicant states she wou ld like the opportunity to continue her education through the use of her G.I. Bill . The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

The Applicant states she is cu rrently employed full-time as a Corrections Officer and is attempting to go to college. The following is provided for the edification of the Applicant. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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 Naval service. The NDRB 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. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided any post-service documentation for the Board to consider. Relief denied.

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 additional evidence related to this discharge. Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A. Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 01 September 2001 until Present).

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 [e.g., Article 92 , failure to obey a lawful order] .

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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USMC | DRB | 2006_Marine | MD0600030

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