Discharge review decisional document



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DEPARTMENT OF THE NAVY

NAVAL DISCHARGE REVIEW BOARD (NDRB)

DISCHARGE REVIEW

DECISIONAL DOCUMENT

ex-Pvt, USMC

Docket No. MD03-00020
Applicant’s Request
The application for discharge review, received 20020926, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The Applicant requested a personal appearance hearing before the Board in the Washington National Capital Region. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter to the Applicant, 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 20030828. 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: BAD CONDUCT DISCHARGE/COURT-MARTIAL, authority: MARCORSEPMAN Par. 1105.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION
Issues, as submitted
1. I wish the discharge to be upgraded (see letter) so that I may enter the field of law enforcement.
To Whom It May Concern:
The following statement is in reference to my current discharge and to plead that I have my discharge upgraded. I will be stating some of my experiences in the military and how I have changed into the adult individual that I am today.
Since I was younger I wanted to be a Marine; I used to talk about being one to my mother all the time. I wanted to become a Marine so badly that I joined the Marine Corps on my 18th birthday, July 6, 1998. I did not celebrate my birthday like most eighteen-year-olds. As a matter of fact I celebrated the day I was born on my way and at the place I wanted to go since my early days of my youth, MCRD Parris Island. I felt that this was truly a birthday gift. I was fulfilling my long time dream and obtaining one of my major goals. I graduated October 2d 1998 from platoon 3081; I accomplished my goal and became a Marine.
Although my accomplishment as a Marine began at the Iwo Jima memorial on the Island I felt the need to set a higher standard for the next phase, which was School of Infantry in Camp Geiger. I took the training to heart the same way I did during my time at basic training absorbing all the knowledge I possibly could and to strive to master my mortar. After the month long field training in S.O.I. weapons platoon, I graduated once again from specific 0311 training. I was transferred to Weapons Company right next to "Charlie" company barracks. During my time at Weapons Company I applied to my full potential, what the instructors had taught me in Weapons platoon during my field training. I am confident to say that I did excel on the mortar. I broke a couple of time records when it was time for tests in setting up the gun in my schooling there. I helped other Marines who weren't confident with the weapon to get adjusted to it and showed them how to apply certain methods to help them be more comfortable. I was doing very well during my weapons schooling, so well that I had graduated company honor man, was meritoriously promoted and was also given a Certificate of Commendation. I had succeeded in doing that which I had intended. I was happy to become Company Honor man, but sadden that there was going to be a separation between the Marines that I had graduated with. Some were going back home because they were in the reserve, and I was suppose to go to Victor 1,2 Charlie Company while the others were going to Victor 1,2 Weapons company. When we got to the fleet I was reunited with some of the Marines that I had graduated with. The FMF was next on the road ahead. The discipline level in the Fleet Marine Force was a lot more relaxed than of boot camp and still less than that of S.O.I. and Weapons Company at Camp Geiger.
The move to FMF was hard to adjust to. I thought life in the Marine Corps would be constant discipline. The environment itself was another culture shock. I saw Marines smoking, some with camouflage that was discolored and boots unpolished. I ignored and kept doing what I was supposed to. I was looking forward to Lance Corporal rank and keep gaining rank. I had it all set in my head. I had finished boot camp, finished Camp Geiger and now the final round in my first year. The first couple of weeks I was tested in my ability with the mortar (the fleet mortars were a lot more unstable than the ones in school). There were mistakes made here and there, but I adjusted and overcame quickly. After being a gunner I was stripped and then assigned to an ammo man for being a hundred mills out during practice, that hurt my pride, which in turn stressed me out. As days passed I was shifted to a-gunner, ammo man, gunner, a-gunner, and I felt that I was being toyed with because of my proclaimed title during the schooling days. I felt that they wanted to get to my head, but they didn't. There was an incident I want to say late December early January where the Company was out in the field for approximately ten days. One of those days out on the field became very cold. During my machine gun watch the cold temperature put my body to sleep, it was the first time I'd ever fallen asleep. My body could not take the cold, but then again it put a lot of marines to sleep. I was pulled out in front of the platoon and then told of what I did wrong by the Officer and NCO'S. Right after the incident I was told to grab the 240 Machine gun and go to a foxhole. At the foxhole I was told to hold the machine gun in port arms. I was confused, in boot camp we were told about hazing and I had questioned to a NCO if this was hazing and he got upset told the platoon Sergeant and the rest of the higher officials about what I had said. After holding the machine gun for about thirty minutes I was called over to join the rest of the platoon. That was the turning point. I permanently was assigned as ammo man. I inquired on requesting mass and couldn't get any information about it, when I tried to inquire about it I was told Marines who request mass aren't looked at the same by other Marines. I took it as an intimidation statement, but then again influenced by it, because I didn't want to be in bad terms with the Marines that I've been with since boot camp. We were getting ready to go California to do a C.A.X. All the Marines had to go through a thorough inspection. I tried to get my mind back on track starting with the inspection all of my gear was squared away. We arrived in California; we set up camp and were there for about thirty days.
In California I had a chance of getting my Lance Corporal rank because I was senior marine on one of the guns. I was not allowed to participate instead they had a Marine who had less time in grade than me to participate. I felt my pride crush once again. I started not caring and I admit my behavior was starting to change but I continued to do my duties. I began to feel alone. The Marines who I had been with couldn't do anything but try to council me, but my thinking then was that they are PFC's and Privates and they could not help me. The ones that could help me are the NCO's and the Marines that had more time in grade than me, but it wasn't possible. The C.A.X. came and went, considering what had happened I had fun and experienced something different. It was time to pack up and move out. At this point it was time for another inspection before we could go back to Camp Lejeune. We had multiple inspections and Marines were caught with ammunitions, which delayed the process. Charlie Company arrived in Lejeune first and there was word of there being some sort of raid, in my mind I was once again confused. Why would the government raid a Marine Corps barracks? I was that gullible, this isn't what we were taught back on the Island, Marines are super humans in my mind. Anyhow I was never able to confirm if that whole raid situation was true or not, but it was enough to spark confusion.
We got back to Camp Lejeune and it was time for the "shots" I never knew what was being injected into my body because we just never questioned it. Until Marines heard about the Anthrax shot, which was alien to me. I never heard of the Anthrax shot before. When I did hear about the shot I learned that it was not good for the human body. I looked at my surroundings and opened my ears because all I heard mentioned was that there has been a lot of refusal for this shot. There were a lot of rumors going around about the negativity of the Anthrax shot. This was the first time that I had heard rumors about any of the shots that were administered. This frightened me a lot because I had heard so many rumors. I even heard that Congress wanted to eliminate this shot. I thought that if Congress wanted to eliminate the shot and so many others had refused to take the shot then, there must be some serious issues with the Anthrax shot. I refused to take the shot in that if Congress is going to eliminate it or at least is making a fuss about it than I'm not going to take it. I tried to seek counseling and all I was told that "if you don't take this shot your going to the Brig". I began to become very confused and started going through some very stressful moments. I thought, I lost a chance of gaining rank, now I had to take the Anthrax shot, the NCO's and older Marines don't like me and now I was presented with the threat of going to the "Brig". I was afraid and I didn't want to go to prison. I constantly was thinking about all of these things all the time. The stories and rumors of the Anthrax shot continued to spread rapidly. I began to lose my train of thought and tried to figure out a way to get out of taking the shot. The Anthrax shot made me very upset and confused. I went a couple of weeks without taking the shot, hoping that some how it would just go away. During the weeks of avoidance I was told of a Marine from my platoon that went AWOL. The platoon was pulled aside and told about the consequences that the Marine was going to go through. I thought to myself that because of all the hardships, stress, confusion and fear that I was going through that going AWOL would be my only way out from getting the shot and ending a lot of pain that I was going through. My mind was never set on going AWOL. It just got to the point that I wasn't emotionally stable and felt that I needed to leave, but it was never planned. Just one day spontaneously, I packed my personal belongings (all my civilian attire) and got a ride to a near by hotel. That was the last time that I was at Camp Lejeune. I was upset emotionally and not thinking straight. I didn't think about the repercussions, but at this point I needed to clear my mind. I had shattered my own dream that I wanted so dearly.
After leaving the military I tried to get my head straight. I knew I had made a very big mistake that I wished I could have taken back, but there was no way of going back. At this point I began to set my life back on track and try to somehow move forward. I know that at times I thought about when will I be apprehended and punished for my actions. I began to work at a leading retail store, Best Buy. I was working at Best Buy for about six months until I was apprehended.
I was brought down to Quantico, VA and met other Marines that had gone AWOL as well. Some for different reasons some for similar reasons like the Anthrax shot. I was appointed a lawyer, when I first met with him he had asked the reason for me going AWOL. I told the lawyer that I was going through a lot of emotional problems and became very fearful of the Anthrax shot. The lawyer stated that he could not use the Anthrax shot in court. The other Marines who went AWOL for the Anthrax reason were told the same thing. I accepted a plea bargain so that I could get back to moving forward with my life and close this chapter of my life, or so I thought at the time.
Now approximately three years from my discharge I have become more disciplined and have greatly matured. I have been able to move forward and learn from my experience from the time I was in the military. I still greatly regret the actions that I took in leaving the military, but at that time I was very immature and not emotionally stable. At the time of my discharge trial I was not thinking about my future goals and just merely wanting to close that chapter in my life. Now that I have grown and have become a responsible adult with responsibilities I have changed my frame of mind. I wish to be granted an upgrade in that I am seeking a career in criminal justice. Not only do I want to seek a career in criminal justice, but I also want to clear my veteran status and free it of any wrongful discharge. I know that my mistakes have made me stronger and have made me grow into an individual with great future goals. My civilian life has been influenced by my boot camp discipline experience. Although my young minded past has not been the greatest of influences to my peers but the current self is responsible, reasonable and is control of his destiny. I have learned from my mistakes and have taken action to move forward with my life.
I (Applicant) am pleading that my above statement and my letters of recommendations be taken into serious consideration. I plead that I am granted an upgrade for my current discharge, so I can pursue a career as a police officer in the criminal justice field. I have grown as an individual and am not the same man that made the wrong decisions during my military years. I hope that I am granted the upgrade and am given the chance to move on with my future endeavors.
Sincerely,
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant's DD Form 214

Police record check, undated

Character reference, dated August 1, 2002

Character reference, dated July 29, 2002

Character reference, dated July 31, 2002

Applicant's Résumé


PART II - SUMMARY OF SERVICE
Prior Service (component, dates of service, type of discharge):
Active: None

Inactive: USMCR(J) 970920 - 980705 COG


Period of Service Under Review:
Date of Enlistment: 980706 Date of Discharge: 010426
Length of Service (years, months, days):
Active: 02 08 21 Does not exclude lost time

Inactive: None


Age at Entry: 18 Years Contracted: 4
Education Level: 12 AFQT: 53
Highest Rank: PFC
Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: 3.8 (3) Conduct: 2.9 (4)
Military Decorations: None
Unit/Campaign/Service Awards: Certificate of Commendation
Days of Unauthorized Absence: 256
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:
990416: Applicant declared a deserter on 990416 having been an unauthorized absentee since 0700, 990315.
991217: Special Court-Martial.

Charge I: violation of the UCMJ, Article 86:

Specification: Unauthorized absence from 0700, 990315 until 1000, 991201 (256 days/apprehended).

Findings: to Charge I and specification thereunder, guilty.

Sentence: Confinement for 45 days, and a bad conduct discharge.

CA 000731: Sentence approved and ordered executed except for the BCD. However, pursuant to the pretrial agreement, the execution of that part of the sentence extending to all confinement in excess of 2 days, will be suspended for a period of 12 months.


991222: Applicant to voluntary appellate leave.
000808: Applicant to involuntary appellate leave.
010130: NMCCMR: Affirmed findings and sentence.
010426: SSPCMO: 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 20010426 with a bad conduct discharge which was the sentence adjudged by a properly constituted special court-martial that was determined to be legal and proper, affirmed by appellate review authority and executed (A and B). The Board presumed regularity in the conduct of governmental affairs (C). 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 (D and E).
Issue 1. With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency (C, Part IV). The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The NDRB found the Applicant’s service record devoid of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded. Relief denied.
The Applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity is evident during the Applicant’s enlistment. Additionally, there is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, to enhance employment opportunities, or for good conduct in civilian life, subsequent to leaving the service. Relief not warranted.
The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his 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 present.
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 86, unauthorized absence for more than 30 days.
C. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.
D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.
E. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.
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 “afls14.jag.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:
Naval Council of Personnel Boards

Attn: Naval Discharge Review Board

720 Kennon Street SE Rm 309

Washington Navy Yard DC 20374-5023





The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.

INDEX:



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