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USMC | DRB | 2006_Marine | MD0600503
Original file (MD0600503.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. MD06-00503

Applicant’s Request
The application for discharge review was received on 20060222 . The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable o r gener al (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 20061206 . After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, an impropriety in the administrative discharge process was discovered by the NDRB. The Board’s vote was unanimous that the characterization of and reason for discharge shall change to: GENERAL (UNDER HONORABLE CONDITIONS)/SECRETARIAL AUTHORITY, authority: MARCORSEPMAN Par. 6214, Separation Code “JFF1. ”




PART I - ISSUES AND DOCUMENTATION


Decisional Issues :

Equity: Characterization of service too harsh.

Equity: Punishment too harsh.

 Equity: Quality of service.

Equity: Benefits.
Documents submitted by Applicant:
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
 Work and Training Reports (25 pages)
Excerpts from Service Record (16 pages)
 Completion Certificate for Apprentice Tree Trimmer, 2003-2004
 Completion Certificate for Apprentice Tree Trimmer, 2004-2005
Safety Excellence Award, Trees, Inc., 2004
 Completion Certificate for Bucket Operator, dtd March 16, 2005
Completion Certificate for Foreperson, dtd March 16, 2005
Completion Certificate for Specialized Equipment, dtd March 16, 2005
 Employment Reference, B_ S_, Concrete Fleet Manager, dtd March 12, 2006
Employment Reference, D_ G. H_, Concrete Division Manager, undtd
 Employment Re ference , M_ V. H_, District Supervisor, dtd March 1 3 , 2006


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19890912 - 19891226       COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 19891227              Date of Discharge: 19940624

Length of Service (years, months, days):

 Active: 0 4 0 5 29 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: None
         Confinement:              74 days

Age at Entry: 20

Years Contracted: 4

Education Level: 12                                 AFQT: 58

Highest Rank: Cpl                                    MOS: 1142

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.6 ( 9)                                Conduct: 4.6 ( 9)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Good Conduct Medal, Letter of Appreciation, National Defense Service Medal, Combat Action Ribbon, Meritorious Unit Commendation, Southwest Asia Service Medal (2), Kuwait Liberation Medal, Sea Service Deployment Ribbon, Rifle Expert (3rd Award).


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

 Chronological Listing of Significant Service Events :

930525 :  Counseling: Advised of deficiencies in performance and conduct ( failure to notify the chain of command of changes in VHA entitlement, failure to provide support for dependent spouse, failure to provide spouse with command contacts while deployed and in garrison, and demonstrated lack of bearing by showing disdain during counseling ), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
930928:  NJP for violation of UCMJ, Article 86: On or about 0730, 930915, failed to report to his appointed place of duty (BAS), and did not report until 0800.
          Award: Forfeiture of $ 242. 00 per month for 1 month (suspended for 6 months) , restriction and extra duty for 14 days (suspended for 6 months) . Not appealed.
931103:  Counseling: Advised of deficiencies in performance and conduct (failure to provide support for dependents), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. The Applicant chose to make a statement.
931226:  Applicant’s EAS.

 940127:  Charges preferred and referred to special court-martial.
940402:  Counseling: Advised of deficiencies in performance and conduct (conduct unbecoming a Marine and racist attitude and remarks towards minorities), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. Applicant chose to make a statement.
940407:  Special Court Martial
         Charge I: violation of the UCMJ, Article 107, (6 specifications). Plea: NG. Finding: G.
         Specification 1: On or about 920513, with intent to deceive, sign an official document, to wit: Variable Housing Allowance Application (7200), which document was false, and was then known to be false. Plea: NG. Finding: N G.
         Specification 2: On or about 920513, with intent to deceive, sign an official document, to wit: Application for Uniformed Services Identification Card Deers Enrollment (DD Form 1172), which document was false, and was then known to be false. Plea: NG. Finding: NG.
         Specification 3: On or about 920526, with intent to deceive, sign an official document, to wit: Dependency Application (1751), which document was false, and was then known to be false. Plea: NG. Finding: NG.
         Specification 4: On or about 921117, with intent to deceive, sign an official document, to wit: Leave and Earnings Statement, which document was false, and was then known to be false. Plea: NG. Finding: G.
         Specification 5: On or about 921118, with intent to deceive, sign an official document, to wit: Application for Uniformed Services Identification Card Deers Enrollment (DD Form 1172), which document was false, and was then known to be false. Plea: NG. Finding: NG.
         Specification 6: On or about 931018, with intent to deceive, make to Naval Investigative Service, an official statement, which said statement was false, and was then known to be false. Plea: NG. Finding: NG.
         Charge II: violation of UMCJ, Article 121 . Plea: NG. Finding: G.
         Specification: Did on or about and between May 1992 and May 1993, steal U.S. currency of the value of about $4,695.74, the property of the U.S. Government. Plea: NG. Finding: G.
         Charge III: violation of UMCJ, Article 132, (2 specifications). Plea: NG. Finding: G.
         Specification 1: On or about 920513, by preparing and subscribing to a Variable Housing Allowance Application (7200) for presentment for approval and payment, make a claim against the U.S. in the amount of about $524.00 monthly rent and utilities, which claim was false and fraudulent, and was then know to be false and fraudulent. Plea: NG. Finding: NG.
         Specification 2: On or about or between May 1992 and May 1993, by presenting a Variable Housing Allowance Application (7200) for a claim, and by accepting Variable Housing Allowance payments, present for approval and payment a claim against the U.S. in the amount of $4695.74 for rent and utilities, which claim was false and fraudulent, and was then known to be false and fraudulent. Plea: NG. Finding: G.
         Sentence: Confinement for 90 days , forfeiture of $ 600. 00 per month for 3 months, and reduction to E- 2 .
         CA 940624 : T he sentenc e approved and ordered executed .
940505:  Counseling: Advised of deficiencies in performance and conduct (wrongfully and without authority wear upon his uniform a rifle badge with 4th award device), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

 940519 :  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct . The factual basis for this recommendation was numerous derogatory counseling entries, one nonjudicial punishment, and special court-martial conviction. Applicant informed the least favorable character of service possible was under other than honorable conditions.

940519 :  Applicant advised of rights an d having elected not to consult , elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

940519 :  Commanding Officer recommended Applicant’s discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct.

940615 :  SJA review determined the case sufficient in law and fact.
940617 :  Commanding General, 1st Marine Expeditionary Brigade, d irected the Applicant's discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct.
940620:  Applicant from confinement.

940624:  DD Form 214: Applicant discharged under other than honorable conditions by reason of misconduct due to pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19940624 by reason of misconduct due to a pattern of misconduct (A ) 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 im proper and in equitable ( B and C).

The Applicant requests relief based on equity, contending that the characterization of service was too harsh; that he had prior good service; and that he desires to access VA healthcare. The Board instead found that the Applicant warrants relief based on a determination that the administrative discharge process was improper.

First, applicable regulation holds that those personnel to whom jurisdiction has attached by commencement of action with a view to trial, as by apprehension, arrest, confinement, or filing of charges, prior to release from active duty, may be retained on active duty. The Applicant’s original end of active service (EAS) was 19931226 and charges were filed for special court-martial on 19940127. There was nothing in the record to show that the Applicant was apprehended, arrested, confined, or on legal hold prior to his EAS. This constitutes an impropriety.

Second, applicable regulation holds that personnel retained beyond end of active service due to serving a sentence or awaiting appellate review of a court-martial may be discharged. Discharged Marines will be provided their discharge certificate and DD Form 214 at the time of their release from confinement at expiration of their sentence. The records show that the Applicant was released from confinement on 19940620 but was not separated until 19940624. There was nothing in the records to explain why the Applicant was not discharged on 19940620. This constitutes an impropriety.

Finally, while applicable regulation stipulates that Marines may be held beyond their EAS by commencement of action with a view to trial, they will not be retained beyond their EAS for administrative discharge. The Applicant was held beyond his EAS for a special court-martial, and while he was serving the confinement portion of his sentence, the command administratively processed him for separation. This constitutes an impropriety.

Notwithstanding the impropriety, the Applicant’s record was marred by two counseling entries and a nonjudicial punishment proceeding prior to his EAS. After his EAS, his records contain two counseling entries and a special court-martial conviction. Based on this review, the Board unanimously voted to change the characterization of service to General (Under Honorable Conditions) and to change the narrative reason for separation to Secretarial Authority.

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 post-service accomplishments or any other evidence related to the discharge at that time. 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 P1900.16D), effective 27 Jun 89 until 17 Aug 95.

B . Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

C . 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 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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