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USMC | DRB | 2006_Marine | MD0600422

Original file (MD0600422.rtf) Auto-classification: Denied

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

FOR OFFICIAL USE ONLY

ex-Pvt, USMC
Docket No. MD06-00422

Applicant ’s Request

The application for discharge review was received on 20060118 . The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable . The Applicant requests a personal appearance hearing before the Board in the Washington, D.C. Metropolitan area . The Applicant did not designate a representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 200 7 0110 . After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board determined that clemency was not warranted and that the characterization of discharge was appropriate . The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain as a bad conduct discharge by reason of court-marital.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant ’s issues, as stated on the application:

“ I served honorably for 5 years, even After Being Detained and Hurt By Canadian Forces on Board and American Military Base. No action was ever taken. Even After my injuries I exceled and was meritoriously promoted, Later in my career my injury go worse and ended my career. When I realized my career was over I fell in to depression and Began to suffer from Post tramatic stress. When I fell into depression, I made some mistakes. After 5 years of honorable service, no Article 15’s, no Page 11 entries, in addition to having positive Reports, why court martial. When I was hurt By the Canadians it was sweep under a Rug, when I messed up the Marine Corps forgot My service and went for the kill. I feel my punishment was to harsh. ”

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

“ Pleas e allow me to come and T ruly speak on my own behalf. This is an open door in my Life and I need to speak what happen and whats on my heart. If nothing else happens I wish to get Back my uniform that I worked so hard for. I was discraced when I left 29 Palms and I’ve seen so hard times, but I’m still a Marine Please! Just hear my story ”

Documentation

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

Applicant ’s DD Form 214 (Member 1 and 4, State Director of Veterans Affairs 6)
Statement from the Applicant , undtd (2 pages)
Ten pages from Applicant ’s Physical Evaluation and Limited Duty Board s
Letter to Applicant from E_ M. C_, Member of Congress, dtd June 12, 1995 (2)
Letter to Applicant from G. K. B_, Member of Congress, dtd April 15, 2005
Letter to Applicant from E_ M. C_, Member of Congress, dtd October 3, 1995
Letter to the Honorable E_ M. C_, Member, United States House of Representatives from Headquarters United States Marine Corps, dtd September 25, 1995 (2)
Applicant ’s election of options for preliminary findings of unfit for duty, dtd August 30, 1996 (2 pages)
Applicant ’s Preliminary Findings from President, Physical Evaluation Board, dtd August 21, 1996 (2 pages)
Letter to Commanding Officer, Marine Corps Communication-Electronics School from Commanding General, Marine Corps Air Ground Combat Center, Twentynine Palms, CA, dtd June 30, 1995
Letter to Commanding General, Marine Corps Air Ground Combat Center, Twentynine Palms, CA from Commandant of the Marine Corps, dtd June 29, 1995
Telecopier information sheet, dtd June 6, 1995
Constituent authorization form, dtd June 6, 1995
Three pages from 8 ^th Comm Bn log book , dtd February 28, 1992
Four pages from Applicant ’s medical record
Letter to the Honorable E_ M. C_, Member, United States House of Representatives, dtd June 29, 1995
Thirty-two pages from Applicant’s MCCES instructor qualifications and evaluations
Twenty-two pages from Applicant ’s service record
Applicant ’s Certificate of completion of Instructor Training Course, dtd August 25, 1995
Applicant ’s Certificate of qualification, dtd April 17, 1996
Applicant ’s Certificate of Commendation, dtd October 11, 1994
Applicant ’s Certificate of Commendation, dtd June 9, 1994
Applicant ’s Certificate of Completion of Communication Security Course, dtd September 13, 1991
Applicant ’s Certificate of Completion, dtd August 28, 1992
Applicant ’s Certificate of Acceptance, dtd December 1, 1987
Applicant ’s Certificate of Completion of NCO Career Nonresident Program, Drill and Ceremonies, Uniforms and Inspections, Customs and courtesies, dtd January 4, 1995
Applicant ’s Certificate of Completion of NCO Career Nonresident Program, Battle Skills, dtd November 16, 1993
Applicant ’s Certificate of Completion of NCO Career Nonresident Program, Leadership, dtd January 4, 1995
Applicant ’s Certificate of Completion of NCO Career Nonresident Program, Weapons, dtd January 5, 1995
Applicant ’s Certificate of Completion for Fundamentals of Marine Corps Leadership, dtd July 14, 1992
Applicant ’s Certificate of Completion for Spelling, dtd July 30, 1992
Applicant ’s Certificate of Completion for PLRS Capabilities and Employment, dtd May 5, 1995
Applicant ’s Certificate of Completion for NCO Career Nonresident Program, Physical Training Management, dtd January 25, 1995
Applicant ’s Certificate of Completion for NCO Career Nonresident Program, Techniques of Military Instruction, dtd November 2, 1993
Applicant ’s Certificate of Completion of Field Radio Operator Course, dtd May 3, 1991
Applicant ’s Certificate of Completion for Light Vehicle Operator’s Course, dtd November 22, 1991
Certificate of Completion of Navy Alcohol and Drug Safety Action Program, dtd January 17, 1992
Applicant ’s Certificate of Achievement for completion of Konica PST III, dtd July 9, 1997
Applicant ’s Certificate of Completion of Curriculum Developers Course T4B , dtd September 13, 1996
Applicant ’s Certificate of Attendance of Hazardous Waste Initial Training for Site Managers and Handlers, dtd February 10, 1993
Applicant ’s Certificate of Completion for NCO Basic Nonresident Program, dtd January 26, 1995
Applicant ’s Honorable Discharge Certificate, dtd October 31, 1994
Applicant ’s Certificate of Meritorious Mast, dtd May 26, 1992
Applicant ’s Certificate of Reenlistment, dtd November 1, 1994
Applicant ’s Certificate of Meritorious Mast, dtd November 1, 1993
Applicant ’s Certificate of Promotion, dtd April 1, 1993
Applicant ’s Certificate of Promotion, dtd February 2, 1994

Applicant’s Certificate of Promotion, dtd July 1, 1991

Applicant ’s Certificate of Achievement of Konica Copier Models, 3135/4145/4155/4345/4355, dtd July 16, 1997
Applicant ’s Certificate of Achievement of Konica 1290/1112/1290RE/1590/1015/1120, dtd August 6, 1997
Konica Technical Education Class Report for class ending August 6, 1997
Applicant ’s Certificate of Achievement of Course of Technical Instruction on: SF2025, SF2030, SF2040, dtd July 1, 1998
Applicant ’s Certificate of Achievement of Konica 7050/Force 50/7060/7150, dtd September 30, 1998
Applicant ’s Diploma for Color I mage Runner C3200, dtd August 15, 2003
Applicant ’s Certificate of Course Completion from Canon, dtd January 6, 2006
Applicant ’s Certificate of Technical Proficiency for the Canon IR210S/IR200L, dtd November 17, 2000 (2 pages)
Applicant ’s Certificate of Technical Proficiency for the Canon Fax L4500 Series - CFX-L3500/4000/4500/LC2060, dtd January 4, 2001
Certificate of Technical Proficiency for the Canon Fax LC3170/LC3175, dtd March 23, 2001
Applicant ’s test results for FAX L4500 Series Certification, dtd January 10, 2001
Applicant ’s Panasonic Certificate of Excellence for Medallion Series Copies, dtd March 29, 2001
Applicant ’s Diploma for Image Runner 2800/2200, dtd November 16, 2001
Applicant ’s Diploma for Image Runner 1600/2000, dtd February 3, 2003
Applicant ’s Diploma for Image Runner C3200, dtd August 15, 2003
Applicant ’s Diploma for Image Runner Connectivity Quest, dtd March 1, 2002
Letter of Commendation from L_ S_, Onslow County Purchasing Department, dtd March 9, 2001
Applicant ’s Panasonic Certificate of Excellence for passing the service certification for DP3030/6030 Series, dtd November 4, 2005

PART II - SUMMARY OF SERVICE

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

         Inactive: USMCR (DEP)    19891129- 19901009        C OG
         Active: USMC     19901010 - 19941031      HON

Period of Service Under Review :

Date of Enlistment: 19941101              Date of Discharge: 19970925

Length of Service (years, months, days):

Active: 02 10 25
         Inactive: None

Time Lost During This Period (days):

         Unauthorized absence: None
         Confinement:              None

Age at Entry: 22

Years Contracted: 4

Education Level: 12                                 AFQT: 43

Highest Rank: Sgt                                    MOS: 2531 /8531

Final Enlisted Performance Evaluation Averages (number of marks):
Fitness reports were available to the Board for review .

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): National Defense Service Medal, Rifle Expert Badge, Meritorious Mast(2 Awards), Joint Meritorious Unit Commendation, Meritorious Unit Commendation, Certificate of Commendation(2 Awards), Certificate of Appreciation, Sea Service Deployment Ribbon(2 Awards), Humanitarian Service Medal, Pistol Marksmanship Badge, Good Conduct Medal

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

BAD CONDUCT DISCHARGE/COURT-MARTIAL, authority: MARCORSEPMAN Par. 1105.

Chronological Listing of Significant Service Events :

941101 : Reenlisted this date for a term of 4 years.

960 301 : Commanding Officer, MCCES, requests CID investigation into allegations of Applicant’s misconduct with subordinates .

960919 : Charges preferred against Applicant for violation of the Uniform Code of Military Justice (UCMJ) Article 92 (5 specifications) and Article 134 (5 specifications).

9610 18 : Applicant offers pretrial agreement .

961021: Convening Authority approves pretrial agreement.

961021 : Charges referred to special court-martial .

961022 : Special Court Martial
         Charge I: violation of the UCMJ, Article 92 ( 5 specifications).
         Specification 1: Having knowledge of a lawful order issued by the Commanding Officer of the Marine Corps Communication-Electronics School, to wit: School Order 5370.4A, dated 950410, an order which it was his duty to obey, did on board Marine Corps Air Ground Combat Center, Twentynine Palms, California, on or about 9 March 1996, violate the same by fraternizing with Private First Class L_ M. C_, U.S. Marine Corps, by engaging in sexual intercourse with the said Private First Class C_ while she was a student at Marine Corps Communications-Electronics School and the said Sergeant W_( Applicant ) was an instructor Plea: Guilty. Finding: Guilty.
         Specification 2: Having knowledge of a lawful order issued by the Commanding Officer of the Marine Corps Communication-Electronics School, to wit: School Order 5370.4A, dated 950410, an order which it was his duty to obey, did at Twentynine Palms, California, during about late January or early February 1996, violate the same by fraternizing with Private First Class A_ D. Z_, U.S. Marine Corps, by engaging in sexual intercourse with the said Private First Class Z_ while she was a student at Marine Corps Communications-Electronics School and the said Sergeant W_ was an instructor. Plea: Guilty. Finding: Guilty.
         Specification 3: Having knowledge of a lawful order issued by the Commanding Officer of the Marine Corps Communication-Electronics School, to wit: School Order 5370.4A, dated 950410, an order which it was his duty to obey, did at Twentynine Palms, California, during about the first week of February 1996, violate the same by fraternizing with Private First Class A_ D. Z_, U.S. Marine Corps, by engaging in sexual intercourse with the said Private First Class Z_ while she was a student at Marine Corps Communications-Electronics School and the said Sergeant W_ was an instructor. Plea: Guilty. Finding: Guilty.
         Specification 4: Having knowledge of a lawful order issued by the Commanding Officer of the Marine Corps Communication-Electronics School, to wit: School Order 5370.4A, dated 950410, an order which it was his duty to obey, did at Twentynine Palms, California, during about the second week of February 1996, violate the same by fraternizing with Private First Class A_ D. Z_, U.S. Marine Corps, by engaging in sexual intercourse with the said Private First Class Z_ while she was a student a Marine Corps Communications-Electronics School and the said Sergeant W_ was an instructor. Plea: Guilty. Finding: Guilty.
         Specification 5: Who knew of his duties as Duty Noncommissioned Officer for Bravo Company, Marine Corps Communications-Electronics School, Marine Corps Air Ground Combat Center, Twentynine Palms, California, on or about 960309, was derelict in the performance of his duties in that he willfully entered an unknown empty barracks room a: barracks 1661 and engaged in sexual intercourse with Private Fi r st Class L_ M. C_, U.S. Marine Corps, a student at Marine Corps Communications-Electronics School. Plea: Guilty. Finding: Guilty.
         Charge II: violation of UMCJ, Article 134 (5 specifications) .
         Specification 1: On or about 960309, wrongfully have sexual intercourse with Private First Class L_ M. C_, U.S. Marine Corps, a woman not his wife. Plea: Guilty. Finding: Guilty.
         Specification 2: During about la t e January or early February, 1996, wrongfully have sexual intercourse with Private First Class A_ D. Z_, U.S. Marine Corps, a woman not his wife Plea: Guilty. Finding: Guilty.
         Specification 3: During about the first week of February 1996, wrongfully have sexual intercourse with Private First Class A_ D. Z_, U.S. Marine Corps, a woman not his wife. Plea: Guilty. Finding: Guilty.
         Specification 4: During about the second week of February 1996, wrongfully have sexual intercourse with Private First Class A_ D. Z_, U.S. Marine Corps, a woman not his wife. Plea: Guilty. Finding: Guilty.
         Specification 5: During February 1996, wrongfully endeavor to impede an investigation by U.S. Marine Corps Criminal Investigation Division by instructing Private First Class T_ L. D_, U.S. Marine Corps, to tell Private First Class A_ L. D_, U.S. Marine Corps, that she should tell the investigators that she was forced into making her statement to Criminal Investigation Division dated 29 January 1996 and to deny any involvement with Sergeant C_ A. J_, U.S. Marine Corps. Plea: Guilty. Finding: Guilty.
         Sentence: Confinement for 4 months, reduction to E-1, Bad Conduct discharge.
         CA 9 6 1203 : Reduction to E-1 and bad conduct discharged approved and , except for bad conduct discharge, ordered executed,.

961023: Applicant found medically qualified for separation.

961025: Applicant to appellate leave.

970702 : NMCCCA: Affirmed findings and sentence.

970917 : Appellate review complete.

970925 : SSPCMO No. 97-1464 : Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19970925 with a bad conduct discharge which was the sentence adjudged by a properly convened special court-martial. That sentence was subsequently approved by both the convening and appellate review authorities (A and B). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the Applicant ’s issues were insufficient to merit clemency (C).

In response to the Applicant’s issue, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed. After a thorough review of the Applicant’s record, issues submitted, and post service accomplishments, the Board determined that clemency was not warranted and that the sentence awarded the Applicant at his court-martial was appropriate for the willful and repeated offenses he committed. Relief denied.

For the Applicant’s edification, DoD disability regulations do not preclude a disciplinary separation. SECNAVINST 1850.4 C stipulates that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board, the Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record.

When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline. The NDRB generally does not consider the circumstances surrounding the Applicant’s stated condition, the implied incorrect diagnosis, nor the medical treatment given to the Applicant to be of sufficient nature to exculpate the Applicant’s misconduct. In Applicant’s case, the NDRB sees no connection between the Applicant’s misconduct and his documented shoulder injury and his alleged mental condition. Relief 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 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURT-MARTIAL , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 950818 until 010831.

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 92, Failure to obey order or regulation; Article 134, Adultery; and Article 134, Wrongful interference with an adverse administrative proceeding.

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 205(2), Jurisdictional Limitations Authority for Review of Discharges.

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 | MD0600422

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