Search Decisions

Decision Text

USMC | DRB | 2006_Marine | MD0600755
Original file (MD0600755.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-SSgt, USMC
Docket No. MD06-00755

Applicant’s Request
The application for discharge review was received on 20060511 . The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable and the Narrative Reason for Separation 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 20070308 . 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 the 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.






The NDRB did note administrative error(s) on the original DD Form 214. B lock 18 , Remarks, should read: “CONTINUOUS HONORABLE ACTIVE DUTY FROM 19840706 UNTIL 19970306” and Block 24, Character of Service, should read: “GENERAL (UNDER HONORABLE CONDITIONS) . ” The Commandant, Headquarters USMC, Quantico, VA, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

PART I - ISSUES AND DOCUMENTATION

Decisional Issues :

Equity: Quality of service

Propriety: Command prejudice (2)

Equity: Personal situation , stressful situation

Equity: Post service (documentation submitted by the Applicant)

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 4)
Ltr from Applicant to NDRB , dtd May 1, 2006 (4 pages)
Ltr from Applicant to Board of Corrections for Military Records , undated
 9 pages from Applicant’s Service Record Book
General Regulations, Enclosure (12)
Statement of Witness from V_ A. P_, dtd March 12 1999
 Statement of Witness from R_ L. R_, dtd March 09, 1999 (2 pages)
 Statement of Witness from M_ J_, dtd March 16, 1999
Statement of Witness from S_ R_, dtd March 16, 1999
 Record of Authorization for Search, dtd February 19, 1999
Newspaper clipping from the Herald Tribune, “ Navy Officer to remain in military , ”          undated
 Character Reference ltr from L _ B _ , MS, RN, Infection Control Practitioner, Bay Pines    VAMC, Bay Pines , dtd May 21, 2003
Special Contribution Award from the Department of Veterans Affairs, dtd January 10, 2001

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19830720 - 19840705      COG
          Active: USMC     19840706 - 19890417      HON
         Active: USMC     19890418 – 19930225      HON
          Active: USMC     19930226 – 1997030 6       HON
Period of Service Under Review :
Date of Enlistment: 19970307             Date of Discharge: 19990701

Length of Service (years, months, days):

 Active: 0 2 0 3 24
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: None
         Confinement:              None
Age at Entry: 31

Years Contracted: 4

Education Level: 12                                 AFQT: 35

Highest Rank: SSgt                                  MOS: 7212

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): Rifle Marksman Badge, Pistol Marksman Badge, (2) Letters of Appreciation, Sea Service Deployment Ribbon (W/10*), Good Conduct Medal (W/3*), Armed Forces Expeditionary Medal, Meritorious Unit Commendation (W/2*), Navy Unit Commendation (W/2*), National Defense Service Medal , Southwest Asia Service Medal (W/1*), Meritorious Mast, Humanitarian Service Medal, Joint Meritorious Unit Award, Kuwait Liberation Medal (K) , Navy Achievemen t Medal, Kuwait Liberation Medal.


Character, Narrative Reason, and Authority of Discharge (at time of issuance):
GENER AL (UNDER HONORABLE CONDITIONS) /MISCONDUCT, authority: MARCORSEPMAN Par. 6210.6.
Chronological Listing of Significant Service Events :

970307 :  Reenlisted this date for a term of 4 years.

971112:  Counseling: Advised of deficiencies in performance and conduct (Domestic/simple assault and wrongful destruction of government property.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
         
990106 :  Counseling: Advised of deficiencies in performance and conduct ( Lack of judgement and inappropriate behavior when dealing with junior Marines. ), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
          Applicants chose to make a written rebuttal.
990512:  NJP for violation of UCMJ, Article 90:
          Specification: On or about 990101 to 990301, SNM did willing fully disobey a lawful command from 1 st L t V. A. P_, USMC, to stop all contact with LCpl E. A. P_, USMC.
         Violation of UCMJ, Article 91:
         Specification: On or about Dec 98 to Feb 99 , SNM did wrongfully have sexual intercourse with LCpl E. A. P_, USMC, a married woman not his wife.
Violation of UCMJ, Article 92:
Specification: On or about Dec 98 to Feb 99 SNM did violate a lawful general regulation to wit: Article 1165, U.S. Navy Regulations d t d 900914 as amended 920125, by wrongfully engaging in an unduly familiar relationship with LCpl E. A. P_, USMC, by having an ongoing sexual relationship with the said LCpl P_.
 Violation of UCMJ, Article 134:
Specification: On or about 981224 to Feb 99, SNM did wrongfully have sexual intercourse with LCpl E. A. P_, USMC, a married woman not his wife.
         Award: Forfeiture of $1000.00 pay per month for2 months, restriction for 60 days. Not appealed.
990521 :  Applicant informed the least favorable character of service possible was general (under honorable conditions) by reason of misconduct due to commission of a serious offense.

990524 :  Applicant advised of rights and having consulted with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

990602 :  Commanding Officer, Marine Air C ontrol Group 18 recommended that the Applicant be discharge d with a general (under honorable conditions) by reason of misconduct due to a commission of a serious offense. The factual basis for this recommendation stem s from Staff Sergeant H_’s (Applicant ) violation of Articles 91, 92, and 134 of the UCMJ, to wit: did wrongfully have sexual intercourse with a married woman not his wife.

990603:  SJA review determined the case sufficient in law and fact.

990603:  Command er, 1 st Marine Aircraft Wing directed the Applicant’s discharge with a general (under honorable conditions) by reason of misconduct due to commission of a serious offense.



PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19990701 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 records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

Narrative Reason: The Applicant requested that his for discharge be changed to “Honorable.” The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted. The summary of service clearly documents that misconduct, commission of a serious offense, was the reason the Applicant was discharged. Since no other Narrative Reason for Separation could more clearly describe why the Applicant was discharged, a change would be inappropriate.

Equity: Quality of service – The Applicant contends that his discharge should be upgraded to truly reflect his nearly 15 years of exemplary Marine Corps service.
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. 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 2 retention warnings and a nonjudicial punishment proceedings for violations of Articles 90 (Willfully disobeying lawful order of superior commissioned officer) , 91 (Willfully disobey noncommissioned officer) , 92 (Willful failure to obey order, regulation) and 134 (Adultery) of the UCMJ. Violations of UCMJ Articles 90, 91, 92, and 134 are considered serious offenses for which a punitive discharge is authorized if adjudged by a special or general court-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.

Propriety: Command prejudice – The Applicant contends that reason to discharge him was based upon a fabrication of the events by his superior.

Propriety: Command prejudice - The Applicant contends that the interracial aspect of the relationship was a factor in the Command’s decision to administratively process him (severity of charges and the characterization of service).

With respect to the Applicants contention that his superior fabricated the events surrounding his misconduct and that his Command initiated his administrative separation because he was involved in an interracial relationship, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. The record contains no evidence of any wrongdoing by the Applicant’s Commanding Officer, 1stLt P_ , or anyone else for that matter in the discharge process. The NDRB did note a technical impropriety in that the Applicant was notified that the least favorable characterization of service that he could receive was General Under Honorable Conditions. According to the Marine Corps Separation and Retirement Manual, the least favorable characterization of service that the Applicnat could have received was Under Other Than Honorable Conditions. The Applicant’s Commanding Officer recommended that the Applicant receive a General Under Honorable Conditions characterization and the GCMCA agreed with that recommendation. The NDRB is convinced that this procedural error was not prejudicial to the Applicant and therefore affords him no relief. The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. Relief denied.

Equity: Personal problem, stressful situation – The Applicant contends that due to circumstances beyond his control, he was forced to make a moral decision that resulted in his failure to follow an order.
While the Applicant may feel that his misconduct resulted from circumstances beyond his control, and that he was forced to decide to disobey a lawful order, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

Equity: Post service – The Applicant submitted a letter to show proof of employment.

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered. The Applicant provided one letter of recommendation from his employer as documentation of post-service accomplishments. The Applicant's efforts need to be more encompassing than those provided. For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service and certification of non-involvement with civil authorities. The Board determined that the documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of discharge. Therefore, no relief will be granted.


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 31 January 1997 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 s 90 (Willfully disobeying lawful order of superior commissioned officer), 91 (Willfully disobey noncommissioned officer), 92 (Willful failure to obey order, regulation), and 134 ( Adultery ).

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 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

Similar Decisions

  • USMC | DRB | 2006_Marine | MD0600847

    Original file (MD0600847.rtf) Auto-classification: Denied

    The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. Not appealed.041229: Counseling: Advised of deficiencies in performance and conduct (Non-judicial punishment on 041229 for violation of the UCMJ, specifically, Article 92, 134 (2x)), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.050118: NJP for violation of UCMJ, Article 89: On or about 041229 behave...

  • USMC | DRB | 2006_Marine | MD0600373

    Original file (MD0600373.rtf) Auto-classification: Denied

    The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. Issues, as stated Applicant’s issues, as stated on the application:“To assist with further education and living expensesTo assist with VA benefits” 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)Reference letter from M_ M_, LCDP, NCGC II, Kent...

  • USMC | DRB | 2005_Marine | MD0501122

    Original file (MD0501122.rtf) Auto-classification: Denied

    The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable and the Narrative Reason for Separation be changed to “Convenience of the government & reenlistment code change to RE-1.” The Applicant requests a personal appearance discharge review before a traveling panel closest to Honolulu, HI. st Marine Expeditionary Brigade directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a...

  • USMC | DRB | 2005_Marine | MD0501461

    Original file (MD0501461.rtf) Auto-classification: Denied

    Applicant’s NJP on 040607 for violation of Art 86, unauthorized absence. 050107: An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to pattern of misconduct, that such misconduct warranted separation, and by a vote of 2 to 1 recommended discharge under other than honorable conditions.050114: Commanding Officer, Marine Air Control Squadron 2 concurs with the findings and conclusions of the...

  • USMC | DRB | 2006_Marine | MD0600032

    Original file (MD0600032.rtf) Auto-classification: Denied

    [Extracted from DD Form 2807-1 dated 040407].040322: Commanding Officer, VMFA-321 recommended the Applicant’s under other than honorable conditions discharge by reason of misconduct due to pattern of misconduct. Based upon supporting documentation, the administrative discharge board found that a preponderance of the evidence supported the Applicant’s misconduct and recommended separation under other than honorable conditions. On 20040322, the Commanding Officer, VMFA 321, recommended to...

  • USMC | DRB | 2005_Marine | MD0501574

    Original file (MD0501574.rtf) Auto-classification: Denied

    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. PART I - APPLICANT’S ISSUES AND DOCUMENTATION Not appealed.020208: Counseling: Advised of deficiencies in performance and conduct (SNM received battalion level NJP on 020207, this was SNM’s third NJP in 19 months.

  • USMC | DRB | 2006_Marine | MD0600330

    Original file (MD0600330.rtf) Auto-classification: Denied

    The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. ]950128: Counseling: Advised of deficiencies in performance and conduct (Found guilty at NJP on 950106 for Article 128. 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...

  • USMC | DRB | 2005_Marine | MD0501235

    Original file (MD0501235.rtf) Auto-classification: Denied

    The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable or general (under honorable conditions). The Applicant’s conduct, which forms the primary basis for determining the character of his service, falls well below that required for an honorable characterization of service. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

  • USMC | DRB | 2005_Marine | MD0501227

    Original file (MD0501227.rtf) Auto-classification: Denied

    This packet also includes veteran’ statement, Mental Health Outpatient notes and letters from commanding officer of the Department of the Navy and the United States Marine Corp. This letter’s statements on Mr. K_(Applicant)’s personality disorder does not Include his diagnosis of Dysthimic Disorder which was diagnosed at the Mental Health Outpatient clinic at the Naval Hospital at Camp Lejeune, N.C. and does not include the fact that Mr. K_(Applicant) was seeking help as early as October of...

  • USMC | DRB | 2005_Marine | MD0500330

    Original file (MD0500330.rtf) Auto-classification: Denied

    Not appealed.890607: NJP for violation of UCMJ, Article 92: Specification: In that SNM, having knowledge of a lawful order, failed to obey same by wrongfully driving on an unauthorized road with a government vehicle. 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 offenses he committed. The...