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USMC | DRB | 2006_Marine | MD0600330

Original file (MD0600330.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. MD06-00330

Applicant ’s Request

The application for discharge review was received on 20051215 . 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 20061130 . 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 ization of the discharge shall not change. The discharge shall remain Under Other Than Honorable Conditions by reason of separation in lieu of trial by court-martial.

PART I -
APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant ’s issues, as stated on the application:

“ I was young and naïve back then and I feel I was used as a scapegoat by all of the older, higher ranking Marines organizing the Pyramid schemes. I was blamed for everything and forced to leave (pushed out) in Lieu of a court martial. I haven’t been (wasn’t able to get a good job) able to get any good career jobs because of my discharge and have been depressed and drinking because of it. I’m making life changes now at 32 and am a Certified Nursing Assistant/Certified Care giver. My upgrade (if accepted/GRANTED) would help me out immensly. Thank you. ”

Applicant’s Remarks: (Taken from the DD Form 293.)

“ I ended up enpregnating an old salty 1 ^st Sgt’s daugther when I was overseas. We were forced to marry and my career was micromanaged by his every mood. She ended up committing adultery on me, getting pregnant by another man while I was off on an excercise and I was constantly being monitered, set up, and made out to be a monster. My career suffered and inspite of 3 meritorious Masts and 10 letters of appreciation I was dooped into taking the fall for a Pyramid Scheme I didn’t do and forced out of the Corps. I’ve been depressed ever since, my wife and I are estranged and I owe over $200,000 in child support to her, the fraudulent adultress. ”

Documentation

Only the service record and medical record s were reviewed. The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

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

         Inactive: USMCR (DEP)    19901030 – Unknown       Unknown
         Active: None

Period of Service Under Review :

Date of Enlistment: 199 20107              Date of Discharge: 19960530

Length of Service (years, months, days):

Active: 0 4 0 4 24 (Does not exclude lost time.)
         Inactive: None

Time Lost During This Period (days):

         Unauthorized absence: None
         Confinement:              69 day s

Age at Entry: 18

Years Contracted: 4

Education Level: 12                                 AFQT: 70

Highest Rank: LCpl                                   MOS: 0431

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency: 4 . 2 ( 15 )                                Conduct: 3 . 7 ( 15 )

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 (10 ^th Award); Meritorious Mast (3d Award); Certificate of Appreciation; Rifle Sharpshooter Badge

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

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT-MARTIAL, authority: MARCORSEPMAN Par. 6419.

Chronological Listing of Significant Service Events :

911212 : Pre-service waiver granted.

930204: Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Charge I: Article 8 1 : In that Lance Corporal J_ J. M_( Applicant ) Jr., U.S. Marine Corps, did, at Camp Courtney, Okinawa, Japan, on or about 9211 12, conspire with Dentalman K_ R. R_, U.S. Navy, to commit an offense under the Uniform Code of Military Justice, to wit: larceny of various items of military issue and personal property, of a value of about $713.59, the property of Gunnery Sergeant K_ P_, U.S. Marine Corps, a car stereo, of a value of about $45.00, the property of Chief Warrant Officer-2 A_ L. D_ II, U.S. Marine Corps, and in order to effect the object of the conspiracy the said Lance Corporal M_ did assist Dentalman R_ in removing the said property from Gunnery Sergeant P_’s vehicle, from Major G _’s vehicle, and from Chief Warrant Officer-2 D_’s vehicle respectively and placing it all in Dentalman R_’s vehicle.
         Charge II: Violation of the UCMJ, Article 121:
         Specification 1: I n that Lance Corporal J_ J. M_ Jr., U.S. Marine Corps, did, at Camp Courtney, Okinawa, Japan, on or about 9211 12 steal:
         1 Winter undershirt      1 ALICE Pack and frame
         3 Winter drawers         1 Poncho liner
         1 Rainsuit       1 Sh elterhalf
         1 Mosquito net hat       3 Tent poles
         1 Entrenching tool with cover    5 Tent pegs
         6 Canteens with covers   1 Sleeping bag
         1 Black glove set        3 First aid kit with cover
         1 Green glove set        1 Camouflage poncho
         1 Cartridge belt         2 Suspender strap set
         _ M16 magazine pouches   Black cold weather cap
         1 _________ kit bag      1 Field jack with liner
         1 Waterproof clothing bag        1 K nap sack
         of a value of about $713.50, the property of Gunnery Sergeant K_ P_, U.S. Marine Corps.
         Specification 2: In that Lance Corporal J_ J. M_ Jr., U.S. Marine Corps, did, at Camp Courtney, Okinawa, Japan, on or about 9211 12, steal a car stereo, of a value of about $100.00, the property of Major L_ R. G_, U.S. Marine Corps.
         Specification 3: In that Lance Corporal J_ J. M_ Jr., U.S. Marine Corps, did, at Camp Courtney, Okinawa, Japan, on or about 9211 12, steal a briefcase, calculator, and bingo markers, of a total value of a bou t $45.00, the property of Chief Warrant Officer-2, A_ L. D_ II, U.S. Marine Corps.

930205: Applicant informed of charges.

930205: Charges referred to special court-martial.

930427: Special Court Martial:
         Charge I: violation of the UCMJ, Article 81: Conspire to commit larceny on 921112. Plea : Guilty. Findings : Guilty.
         Charge II: violation of UMCJ, Article 121:
         Specification 1 Steal Military issue and personal property of a total value of $713.50, the property of GySgt K_ P_, USMC on 911112. Plea : Guilty. Findings : Guilty.
         Specification 2: Steal a car stereo of a value of $100.00, the property of Major L_ G), USMC on 911112. Plea : Guilty. Findings : Guilty.
         Sentence: Confinement for 75 day s, forfeiture of $ 5 00 .00 per month for 3 mont hs , reduction to E-1 .
         CA 930622 : The sentence approved and ordered executed.

930427: Applicant to confinement.

930705: Applicant from confinement.

940520: Counseling: Advised of deficiencies in performance and conduct ( Disrespect towards a Senior SNCO. ), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

94092 2 : Counseling: Advised of deficiencies in performance and conduct ( Domestic violence call by PMO at CamPen on 940918. ), necessary corrective actions explained, sources of assistance provided, and advised being processed for judicial proceedings.

941007: Applicant ’s rebuttal on a page 11 entry dated 940922.

950104: Applicant administratively reduced to E-2 effective 950106.

950106: NJP for VUCMJ Article 128. [Extracted from SJA brief sheet (undated) – no other information available.]

950128: Counseling: Advised of deficiencies in performance and conduct ( Found guilty at NJP on 950106 for Article 128. ), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950301 : NJP for violation of UCMJ, Article 128: On 940918, at CamPen housing area SNM( Applicant ) unlawfully struck T_ M_ in the face by throwing a TV remote control.
         Award: Forfeiture of $478.00 per month for 2 months, extra duty for 45 days, reduction to E-2. Appealed 950113 : Appealed denied 950216.

951002: Acknowledged understanding of eligibility but not recommended for promotion to LCpl for the month of October 1995 because of failure to support dependents and pending investigations. Applicant chose to make a statement.

95100 6 : Applicant ’s rebuttal to page 11 entry dated 961002.

9 5 1101: Acknowledged understanding of eligibility but not recommended for promotion to LCpl for the month of November 1995 because of pending judicial proceedings.

951115: Counseling: Advised of deficiencies in performance and conduct (Failure to pay traffic ticket dtd 950712. Recieved bench warrant for failure to appear on 950905, subsequently additional fines were imposed, as well as 3 yrs informal probation. Applicant only paid $60.00 of the fine.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

951116: Applicant was extremely uncoope r ative and ref used to sign p age 11 entries. Applicant was afforded the opportunity to sign page 11’s again and make a statement.

960209: Counseled this date concerning p a g e 11 entry dated 95115.

960209: Counsel ed for second time on page 11 dated 9 5 1101. SNM( Applicant ) acknowledges pending judicial proceedings at that time. Applicant refused to sign.

960315: Charges preferred for Charge I: viola tion of the Uniform Code of Military Justice (UCMJ) Article 86 :
         Specification 1: In that Private First Class J_ J. M_( Applicant ), Jr., U.S. Marine Corps, Marine Wing Support Squadron 374, Marine Wing Support Group 37, 3d Marine Aircraft Wing, did, on board Marine Corps Air Station Tustin, Tustin California, on or about 951109 , without authority, fail to go at the time prescribed to his appointed place of duty, to wit: 0630 Squadron formation at Building 17, Marine Corps Air Station Tustin.
         Specification 2: In that Private First Class J_ J. M_, Jr., U.S. Marine Corps, Marine Wing Support Squadron 374, Marine Wing Support Group 37, 3d Marine Aircraft Wing, did, on board Marine Corps Air Station Tustin, Tustin California, on or about 96010 8, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Marine Wing Support Squadron 374, S-4 Section, Marine Corps Air Station Tustin,
         Charge II: Violation of the UCMJ, Article 91:
         Specification: In that Private First Class J_ J. M_, Jr., U.S. Marine Corps, Marine Wing Support Squadron 374, Marine Wing Support Group 37, 3d Marine Aircraft Wing, on board Marine Corps Air Station Yuma, Yuma, Arizona, on or about 95091 3, was disrespectful in language and deportment toward Gunnery Sergeant P_ M. M_, a Staff Noncommissioned Officer, then known by the said Private First Class M_ to be a Staff Noncommissioned Officer, who was then in the execution of his office, by saying to him “This counseling is bulls---”, or words to that effect, by making disrespectful facial gestures toward Gunnery Sergeant M_ and refusing to move from behind a government vehicle in which the Gunnery Sergeant M_ was riding while the vehicle was backing out of a parking space at the chow hall parking lot.
         Charge III: Violation of the UCMJ, Article 92:
         Specification 1: In that Private First Class J_ J. M_, Jr., U.S. Marine Corps, Marine Wing Support Squadron 374, Marine Wing Support Group 37, 3d Marine Aircraft Wing, did, at Marine Corps Air Station El-Toro, Santa Ana, California, during about July 1995, violate a lawful general regulation, to wit: Section 2-302a of Department of Defense Directive 5500.7R, dated 940810 (Joint Ethics Regulation), by wrongfully engaging Corporal A_ C_, U.S. Marine Corps, in an illegal gambling activity, to wit: a money pyramid, while aboard a federally owned or leased property and while present for his military duties.
         Specification 2: In that Private First Class J_ J. M_, Jr., U.S. Marine Corps, Marine Wing Support Squadron 374, Marine Wing Support Group 37, 3d Marine Aircraft Wing, did, at Marine Corps Air Station El-Toro, Santa Ana, California, on or about 950807, violate a lawful general regulation, to wit: Section 2-302a of Department of Defense Directive 5500.7R, dated 940810 (Joint Ethics Regulation), by wrongfully engaging Lance Corporal E_ C. S_, U.S. Marine Corps, in an illegal gambling activity, to wit: a money pyramid, while aboard a federally owned or leased property and while present for his military duties.
         Charge IV: Violation of the UCMJ, Article 134:
         Specification 1: In that Private First Class J_ J. M_, Jr., U.S. Marine Corps, Marine Wing Support Squadron 374, Marine Wing Support Group 37, 3d Marine Aircraft Wing, did, at Marine Corps Air Station El-Toro, Santa Ana, California, during about June or July 1995, wrongfully solicit Corporal D_ B. B_, U.S. Marine Corps, to disobey a lawful general regulation, to wit: Section 2-302a of Department of Defense Directive 5500.7R, dated 940810 (Joint Ethics Regulation), by wrongfully soliciting Corporal B_ to engage in an illegal gambling activity, to wit: a money pyramid, while aboard a federally owned or leased property and while present for his military duties.
         Specification 2: Solicit another to disobey a lawful general regulation. [Extracted from Staff Judge Advocate’s brief sheet.]
         Specification 3: Solicit another to disobey a lawful general regulation. [Extracted from Staff Judge Advocate’s brief sheet.]

960320: Applicant informed of charges.

960321: Charges referred to special court-martial.

960401 : Acknowledged understanding of eligibility but not recommended for promotion to Lance Corporal for the month of April 1996 due to pending Court Martial. Applicant chose not to make a statement.

960501: Acknowledged understanding of eligibility but not recommended for promotion to Lance Corporal for the month of May 1996 due to pending Court Martial . Applicant chose to make a statement.

96050 2 : Applicant , having consulted with counsel certified under UCMJ Art 27b, requested discharge for the good of the service to escape trial by court- martial. In the request the Applicant noted that his counsel had fully explained the elements of the offenses for which he was charged and that he u nderstood the elements of the offenses . He further certified a complete understanding of the negative consequences of his actions and that characterization of service would be under other than honorable conditions. The Applicant admitted guilt to the following violations of the UCMJ, Article 134: Disobeying order to wit: soliciting a money pyramid.

960507: SJA review determined the proceedings sufficient in law and fact.

960510: GCMCA, Commanding General, 3d Marine Aircraft Wing, Santa Ana, CA , directed the Applicant 's discharge under other than honorable conditions in lieu of trial by court-martial.

960528: Applicant found medically qualified for separation.

Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19960530 in lieu of trial by court-martial (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).

The Applicant requests an upgrade because his discharge characterization has affected his ability to obtain gainful employment. In a signed statement, the Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial. He consulted with counsel and was fully advised of the implications of his request. The Applicant understood that if discharged under other than honorable conditions, it might deprive him of virtually all veterans' benefits based upon his current enlistment, and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received therefrom may have a bearing. The Applicant stated he understood the elements of the offenses with which he was charged. He admitted he was guilty of violating Article 134 (disobeying the JER by soliciting others to engage in an illegal money pyramid). Relief denied.

The Applicant contends his disciplinary problems were the result of stress caused by marital and family problems. The NDRB recognizes that serving in the U.S. Marine Corps is challenging. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country. It must be noted that most members of the Marine Corps serve honorably and therefore earn their honorable discharges. In fairness to those members of the Marine Corps, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due. The NDRB found that the Applicant's service was equitably characterized. 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 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective
18 Aug 95 until 31 August 2001.

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 134 (soliciting others to violation a general 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 .

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 .

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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction . You should read Enclosure (5) of the Instruction 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 Instruction 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 | MD0600330

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