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


FOR OFFICIAL USE ONLY


ex-PVT, USMC
Docket No. MD06-00135

Applicant’s Request

The application for discharge review was received on 20051026. 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 20060908 . 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 minor disciplinary infractions.

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PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

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

“October 11, 2005

Dear Members of the board,

In this letter I will attempt to persuade the board to grant me an upgrade of my discharge, by showing the board that due to detrimental and bias judgments against me have resulted in my undeserved discharge. My discharge was inequitable due to the accusations brought against me were overemphasized thus resulting in prejudgment against my character; yet these same accusations did not berate nor contradict the achievements of my actual performance. My performance during my limited service time was viewed exceptionally by my noted decorations consisting of the National Defense Service Medal, Sea Service Deployment Ribbon, Letter of Appreciation, and Meritorious Mast. I feel that the evaluation of my conduct compared to that of my actual performance was not fairly explored neither was I given ample time to defend my character against these accusations.

If given the chance to properly defend my character, here is what I would say pertaining to each accusation. The first Incident happened in Embarkation School when a classmate made the agreement to reimburse my stolen radio with that of his since he was responsible for securing my radio since he asked to borrow it. He later complained about me haven taken the new radio that he bought to replace mine, which resulted In me being reprimanded. Another incident happened when my roommate claimed that I took $20.00 dollars from an envelope that was supposedly slipped under our barracks door by on of his coworkers. The matter could never be blamed on me since the missing money was never discovered in my possession for this I was reprimanded. The third incident happened while on deployment in Thailand. I had secured a pair of headphones given to me by the previous duty for my listing purpose. After relinquishing my post in had planned on returning them back to the previous duty whom had given them to me. Later while asleep I was awaked and asked by the previous duty’s NCO to return the headphones, which I handed over to him. No one accused me of wrong doing that day, but when we returned back to our regular headquarters, I received a verbal reprimand. Once I was accused of being tardy for work, this was due to improper documentation of my medical appointment and I was latter reprimanded for this. I was stopped by a PMO cruiser and asked for a license that I did not have. I was punished for driving without a license, which I was guilty of and properly punished for my actions. My last incident involved a charge of disrespect to an Officer, which I confess to being guilty of to an extent because I was not made known of his authority or rank until after we had already engaged in a heated argument while out on liberty. After my court-martial, I considered my punishment to be of a minor nature but fair and lenient because of my actions.

This Is not an attempt to justify my actions. I wanted to show the committee how in each incident that as a result from lack of sufficient evidence these claims against me held no weight thus resulting in me receiving undeserved reprimands that are viewed bigamously, unfairly, and has tainted my character. At a glance these several accusations which resulted in me receiving
reprimands can and have caused other s to become prejudge mental of my character without any consideration of who I am as a human-being, a worker, or a Marine. To elaborate, all of these accusations have failed to associate my character as being precipitous or having a dangerous behavior of that not becoming of a Marine. After all that I had to endure, I have never let these things affect my job performance nor do I hold any resentment towards those who decided on my discharge or the Marine Corp. I do feel disappointed because I had hope to become a man of honor seen by my family, children, and country, but I have not been given a worthy chance due to a few mistakes of judgment along the way. With the exception of those accusations that I confessed to, no other accusations were proven preemptory and further should not have been a weighty factor in the detrimental decision of my discharge.

In conclusion, my character has been scarred by these overemphasized claims and also caused crucial prejudgment against my character and integrity. A discharge of Other Than Honorable when viewed by my family Is seen as a failure, my children sees me as a disappointment, and my country sees me as Insufficient, I see myself as discouragement for others to follow but far from being a complete failure. With the board’s generous and compassionate decision to upgrade my discharge, I may be given another chance to become that man of honor and a respectable citizen by everyone who seeks the truth of my character.

Thank you,

P_ B. J_ (Applicant)”

Documentation

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

Applicant’s transcript from coastal Bend College, dtd Summer 1999 (2 pages)
DD 214

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PART II - SUMMARY OF SERVICE

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

         Inactive: USMCR (DEP)    19930416 – 19930801               COG
         Active: None

Period of Service Under Review :

Date of Enlistment: 19930802             Date of Discharge: 19950913

Length of Service (years, months, days):

Active: 02 01 12
         Inactive: None

Time Lost During This Period (days):

         Unauthorized absence: None
         Confinement:              29 days

Age at Entry: 19

Years Contracted: 4

Education Level: 12                                 AFQT: 47

Highest Rank: PFC                                   MOS: 0431

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency: 3.9 ( 6 )                                Conduct: 4.3 ( 6 )

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, Letter of Appreciation, Meritorious Mast

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Character, Narrative Reason, and Authority of Discharge (at time of issuance):
UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.2.

Chronological Listing of Significant Service Events :

940115:  Acknowledged understanding of eligibility but not recommended for promotion to PFC for the month of Feb 95 because of frequent involvement military authority.

940121:  Counseling: Advised of deficiencies in performance and conduct ( Wrongful appropriation of PFC C ’s personal property on 940117.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940420:  Counseling: Advised of deficiencies in performance and conduct (My attention to duties and regulations of the UCMJ which govern the actions of all service members. The actions I have taken were unbecoming of a Marine and the false statements that I have made concerning those actions were disrespectful to both my superiors and my peers.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940701:  Counseling: Advised of deficiencies in performance and conduct (Applicant’s disregard for regulations by operating a Military 4,000 lb forklift without a license which resulted in an accident that damaged the forklift. Also counseled this date concerning theft of a pair of walkman speakers and the theft of $10.00 from his roommate.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940701:  NJP for violation of UCMJ, Article 108: On 4 May 94 did appropriate unlawfully and wreck a MC 4000 forklift during Operation Cobra Gold 94.
         Violation of UCMJ Article 121:Did steal a set of Walkman speaker from a MSgt. On 22 May 94.
Violation of UCMJ Article 121: Did steal $10.00 from his roommate on 25 June 94.
         Award: Forfeiture of $200.00 pay per month for 1 month, restriction and extra duty for 3 0 days, reduction to E-1. Appealed submitted 940706. Appeal denied 940719.

940824:  Applicant to unauthorized absence at 0730 on 940824.

940824:  Applicant from unauthorized absence at 0835 on 940824 (1 hour).

940907:  Counseling: Advised of deficiencies in performance and conduct (Failure to go at the time prescribed to your appointed place of duty.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940907:  NJP for violation of UCMJ, Article 86: UA (AWOL) from 0730, 940824 to 0835, 940824.
Award: Forfeiture of $416.00 pay per month for 2 months, restriction for 60 days and extra duty for 30 days. Appeal submitted on 940912. Appealed D e n i ed.

941006:  Restriction in excess of 45 days is set aside.

941215:  Acknowledged understanding of eligibility but not recommended for promotion to PFC for the month of Jan 95 because of frequent involvement military authority.

950111:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 89:
         Specification: Disrespect to a superior commissioned officer on 23 Dec 1994. Findings : Guilty
         Charge II: violation of the UCMJ, Article 90:
         Specification: Disobeyed a lawful command from a superior commissioned officer on 23 Dec 1994. Findings: Guilty
         Charge III: violation of the UCMJ, Article 92:
         Specification 1: Violated Sqdrn0 11103.lb by having hard liquor in Barracks 318. Findings : Not Guilty
         Specification 2: Disobeyed CO’s ltr 5800 by exiting MCAS Iwakuni, Japan. Findings : Not Guilty
         Finding: to Charge I and Charge II and the specification thereunder, guilty.
         Sentence: Forfeiture of $568.00 pay per month for 1 month, confinement for 29 days.
         CA action 950123: Sentence approved and ordered executed.

950209:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service which you may receive is under other than honorable conditions. Although the Commanding General, 1^st Marine Forces, Pacific, will make the determination of characterization if you are separated, I am recommending that you receive an under other than honorable conditions discharge. The factual basis for this recommendation was as follows:
a. On 21 January 1994, you were counseled concerning deficiencies in your conduct, specifically, for wrongful appropriation of Private First Class C_’s personal property. You were advised that assistance was available through your chain of command and that failure to take corrective action may result in you being administratively separated from the U.S Marine Corps or in limitation of further service.

b. On 20 April 1994, you were counseled concerning deficiencies in your conduct, specifically, on your attention to duties and regulations of/the Uniform Code of Military Justice (UCMJ); on your actions which were unbecoming of a Marine; and on the false official statements which you made which were considered disrespectful to your superiors and your peers. You were advised that as assistance was available through your chain of command and that failure to take corrective action may result in you being administratively separated from the U.S. Marine Corps or in judicial proceedings.

c. On 1 July 1994, you received nonjudicial punishment for violations of the UCMJ, specifically, for violation of Article 108, UCMJ, to wit: destruction of a 4,000 pound forklift, military property of the United States; and two violation of Article 121, UCMJ, to wit: larceny of one set of walkman speakers, and larceny of $10.00 in U.S. currency.

d. On 1 July 1994, you were counseled concerning deficiencies in your conduct, specifically, for operating a 4,000 pound military forklift without a license, in disregard to regulations, which resulted in an accident that damaged the forklift; and for larceny of one set of walkman speakers, and larceny of $10.00 in U.S. currency. You were advised that assistance was available through your chain of command and that any further infractions of the UCMJ may result in you being administratively separated from the U.S. Marine Corps or in judicial proceedings.

e. On 7 September 1994, you received nonjudicial punishment for violation of the UCMJ, specifically, for violation of Article 86, UCMJ, to wit: unauthorized absence from 0730, 24 August 1994 to 0835, 24 August 1994.

f. On 7 September 1994, you were counseled concerning deficiencies in your conduct, specifically, for failure to go at the time prescribed to your appointed place of duty. You were again advised that assistance was available through your chain of command and that any further infractions of the UCMJ may result in you being administratively separated from the U.S. Marine Corps or in judicial proceedings.

g. On 11 January 1995, you were tried by a summary court-martial for the following violations of the UCMJ:

a. One violation of Article 89, UCMJ, to wit:
Specification: On or about 23 December 1994, you were disrespectful toward Captain D_ J. W_ USMC, a superior commissioned officer, who was then known by you to be a superior commission officer, by being belligerent, obnoxious, and contemptuously turning from and leaving Captain W_ while he was talking to you. You plead not guilty and were found guilty of this offense.
b. One violation of Article 90, UCMJ, to wit:
Specification: After having received a lawful command from Captain D_ J. W_ USMC, a superior commissioned officer, who was then know by you to be a superior commissioned officer, to return to your assigned Bachelor Enlisted Quarters (BEQ) and not to return to the Kawashimo Bar District that night, or words to that effect, you did, at or near the Kawashimo Bar District, on or about 0040, 23 December 1994, willfully disobey the same. You plead not guilty and were found guilty of this offense.
c. Two violations of Article 92, UCMJ, to wit:
Specification 1: While having knowledge of a lawful order issued by the Commanding Officer, Marine Wing Support Squadron 171, Marine Wing Support Group 17, 1st Marine Aircraft Wing, Marine Forces, pacific, to wit: Squadron Order l1103.lb with Change 4, dated 25 July 1992, an order which it’ was your duty to obey, did, at Marine Corps Air Station, Iwakuni, Japan, on or about 23 December 1994, fail to obey to same by wrongfully possessing hard liquor in your assigned BEQ. You plead, not guilty and were found not guilty of this offense.
Specification 2: While having knowledge of a lawful order issued by the commanding Officer, Marine Wing Support Squadron 171, Marine Wing Support Group 17, 1 ^st Marine-AirCraft Wing, Marine Forces, Pacific, to wit: Commanding Officer’s letter 5800 7/Leg dated 30 December 1994, an order which it was your duty to obey, did, at Marine Corps Air Station, Iwakuni, Japan, on or about January 1995, fail to obey to same by wrongfully leaving the confines of Marine Corps Air station, Iwakuni, Japan. You plead not guilty and were found not guilty of this offense.
You were awarded confinement for 29 days, and forfeiture of $568.00 pay per month for one month.

950209:  Applicant advised of rights and having elected not to consult with counsel, elected to appear before an Administrative Discharge Board.

950222:  Acknowledged understanding of eligibility but not recommended for promotion to PFC for the month of March 95 because of frequent involvement military authority. Applicant chose not to make a statement.

950320:  Acknowledged understanding of eligibility but not recommended for promotion to PFC for the month of April 95 because of frequent involvement military authority. Applicant chose not to make a statement.

950412:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct based on a pattern of misconduct, that such misconduct warranted separation, and recommended discharge with under other than honorable conditions. [ Letter from President, Administrative Board informed the Commanding General, 1 ^st Marine Aircraft Wing, of result of Admin Board consideration for sep aration misconduct due to minor disciplinary infractions rather than Pattern of Misconduct. ]

950417:  Acknowledged understanding of eligibility but not recommended for promotion to PFC for the month of May 95 because of frequent involvement military authority. Applicant chose not to make a statement.

950428:  Counseling: Advised of deficiencies in performance and conduct (Applicant’s disregard for Bks regulations by my being in a females room past 2200.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950428:  NJP for violation of UCMJ, Article 92: Failure to obey H&HS Sqdn Order, in that spent the night in females room on 21 Apr 95 to 22 Apr 95.
Award: Forfeiture of $400.00 pay per month for 2 months, restriction and extra duty for 45 days. Not appealed.

950504:  Counseling: Advised of deficiencies in performance and conduct (Suspected gang related activity.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950516:  Acknowledged understanding of eligibility but not recommended for promotion to PFC for the month of Jun 95 because of frequent involvement military authority. Applicant chose not to make a statement

950614:  Acknowledged understanding of eligibility but not recommended for promotion to PFC for the month of Jul 95 because of frequent involvement military authority. Applicant chose not to make a statement.

950614:  Ltr from CWO-4 G_ R. M_, dtd June 14, 1995.
         Sub: Discrepancy in the report of results of trail.

950706:  Ltr from Private P_ B. J_(Applicant) dtd July 6, 1995 on advise of counsel waiving any rights related to administrative error in allowing his administrative discharge board to consider a charge that was withdrawn from his summary court martials.

950717:  Acknowledged understanding of eligibility but not recommended for promotion to PFC for the month of Aug 95 because of frequent involvement military authority. Applicant chose not to make a statement.

950803:  Commanding Officer, Maine Wing Support Group 17, 1 ^st Marine Aircraft Wing, Marine Forces, Pacific, concurs with the recommendation that Private P_ B_ be discharged under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.

950817:  Acknowledged understanding of eligibility but not recommended for promotion to PFC for the month of Sep 95 because of frequent involvement military authority. Applicant chose not to make a statement.

950824:  SJA review determined the case sufficient in law and fact.

950829:  GCMCA, 1 ^st Marine Aircraft Wing, advised the Commandant of the Marine Corps (MMRB) that the Applicant will be discharged with an Under Other Than Honorable by reason of misconduct due to minor disciplinary infractions.

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PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19950913 by reason of misconduct due to minor disciplinary infractions (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 Board presumed regularity in the conduct of governmental affairs (E).

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 six counseling warnings, three nonjudicial punishment proceedings (for violations of Articles 86, 92, 108, and 121 of the UCMJ), and one summary court-martial (for violations of Articles 89 and 90 of the UCMJ). Violations of Articles 89, 90, 92, 108, and 121 are considered serious offenses for which a punitive discharge is authorized at courts martial. 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. Relief is not warranted.

The Applicant implies that the punishments for his misconduct were the result of bias on the part of his superiors. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support his contentions. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. Relief denied.

The NDRB did note a technical impropriety in the Applicant’s separation processing. The Administrative discharge board found that the Applicant had committed misconduct based on a pattern of misconduct, but the President of the board reported that they had found he committed minor disciplinary infractions. Nevertheless, the NDRB is convinced that this procedural error was not prejudicial to the Applicant as he was separated for minor disciplinary infraction which is a less serious basis for separation than pattern of misconduct. Relief based upon this error 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 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 18 Aug 95 until 30 Jan 97.

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 s 89 (Disrespect to a superior commissioned officer), 90 (Disobeying a lawful order), 92 (Failure to obey an order), 108 (Destruction of government property), and 121 (larceny) .

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 .

E. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs .

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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