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Docket No. MD01-00628

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

ex-LCpl, USMC
Docket No. MD01-00628

Applicant’s Request

The application for discharge review, received 010405, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant listed the Veterans of Foreign Wars as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010928.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.6.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1. Issues on my discharge were appropriate as I understand I was wrong for my misconduct, however I feel my discharge in such, were handled inappropriately.  Taken full responsibility for actions at that time I was adequately held accountable.  In the 9 1/2 years served this is the only derrogatory incident of my enlistment.  After my court martial  I continued a positive attitude despite all the turmoil.  In administratively discharge me five days prior to my enlistment contact, sends out the wrong message; it was personal   I made bad judgement call and took fully responsibility for those actions paying restitution to all.  I am a better person today, as I have learned from such mistake.  My discharge would of been honorable if I was allowed to have served the remaining 5 days on my contract; however my goal was not achieved as I struggled during and after my court martial in doing the right thing but was cut short in obtaining such discharge.

2. We ask that you consider the applicant's issue, the evidence of the numerous letter reflecting the applicant excellent post service accomplishments and that you change the discharge as requested.

Documentation

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

Copy of DD Form 214
Letter from applicant dated March 5, 2001
Letter from Okaloosa-Walton dated March 5, 2001
Copy of Certification of Contamination dated June 24, 2000
Letter to applicant from Department of Highway Safety and Motor Vehicles dated June 14, 2000
Letter to applicant from Office of the Sheriff dated December 13, 2000
Copy of Supplemental Application for State Trooper dated June 26, 2000
Letter of recommendation dated March 5, 2001
Letter of recommendation dated July 31, 2000
Letter of recommendation dated August 6, 2000
Letter of recommendation dated August 2, 2000
Letter of recommendation dated February 5, 2001
Letter of recommendation dated February 26, 2001
Letter of recommendation/job, undated
Letter of recommendation, undated
Letter from Monroe Community College, Damon City Campus dated December 15, 1998
Copy of request and authorization for permanent change of station - military dated February 29, 2000
Copy of letter from Department of Veterans Affairs dated June 27, 2000
Letter from United States Senate, undated
Letter from Finger Lakes Community College dated August 5, 1998
Copy of message from CMC Washington DC dated October 22, 1997
Copy of commanding officer's statement of equal opportunity
Letters from PLT sergeants
Letter dated April 17, 1996
Letter from applicant's sister's doctor faxed June 6, 1997
Copy of Leave Authorization (Officer and Enlisted) dated December 30, 1996
Copy of request for hardship discharge dated July 29, 1997
Letter from Congress of the United States dated June 11, 1997
Letter from Assistant Group Chaplain dated June 18, 1997
Copy of recommendation for meritorious promotion to Sergeant dated March 31, 1994
Copy of request for clemency dated July 31, 1997
Copy of termination of permissive temporary additional duty dated January 31, 1997
Copy of message from MCSFCO Puerto Rico, PR dated January 15, 1997
Copy of message from CMC dated May 1, 1996
Copies of pages 2-4 of sworn statement dated February 24, 1997, Criminal Investigation Division
Ten pictures of applicant and family
Copy of note from sister's doctor re her medical condition
Copy of Inspector Instructor's recommendation for humanitarian TAD dated April 19, 1996
Copy of note from sister's doctor re her medical condition dated January 21, 1997
Copy of divorce decree
Copy of college/transcripts/law enforcement-academy
Copy of official orders from Camp Lejeune, NC to Camp Pendleton, CA
Copy of certificate of no debts from Hacienda, PR
Copy of finance account allotment for spouse during sister's condition
Letter of recommendation from applicant’s wife dated 24 September, 2001

PART II - SUMMARY OF SERVICE

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

	Active:   USA			880812 - 881110	HON
   USMC		900716 - 940120	HON
	Inactive: USMCR(J)		900424 - 900715	COG

Period of Service Under Review:

Date of Enlistment:  940121		Date of Discharge:  980115

Length of Service (years, months, days):

	Active:    03  11  25
	Inactive:  None

Age at Entry:  24			Years Contracted:  4

Education Level:  11 GED		AFQT:  32

Highest Rank:  Sgt

Final Enlisted Performance Evaluation Averages:  All enlisted performance reports were available to the Board for review.

Military Decorations:  None

Unit/Campaign/Service Awards:  NMCAM, MUC, GCM, SSDR with 1 Star, AFEM, NDSM, Certificate of Commendation (2), Letter of Appreciation, MM (2), SASM with 1 Star, UNM, JMU, ASR

Days of Unauthorized Absence:  None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.6.

Chronological Listing of Significant Service Events:

940121:	Applicant reenlisted for 4 years.

941222:	Counseled for deficiencies in performance and conduct.  [Disenrollment from Drill Instructor School due to not maintaining qualifications for DI duty IAW MCO 1326.6B by failing to master course requirements].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

960213:	NJP for violation of UCMJ, Article 128:
Specification: Assault PFC by pushing him on 0815, 10Jan96.
Awarded forfeiture of $343.00 per month for 1 month, extra duties for 7 days.  Not appealed.

970710:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 81:
	Specification: Conspire with PFC on 23Dec96.
	Charge II:  violation of the UCMJ, Article 107 (2 specifications):
	Specification 1: Make an official statement by presenting false official PCS orders on 23Dec96.
	Specification 2: Make an official statement by presenting false official PCS orders on 15Jan97.
	Charge III: violation of the UCMJ, Article 123 (2 specifications):
	Specification 1: Utter a certain writing in the following words and figures, to wit: PCS orders dated 23Dec96, issued by CO, 7^th MTBN, 1^st FSSG, CamPen, CA to report to I & I Staff, San Juan, Puerto Rico, no later than 31Jan97 for duty, a writing which would, if genuine, apparently operate to the legal harm of another, which writing was, as he then well knew, falsely made, and which writing was used to the legal harm of Shadow Way Apartments om that Sgt was allowed to break his lease without penalty and void payment of $605.00.
Specification 2: Utter a certain writing in the following words and figures, to wit: PCS orders dated 23Dec96, issued by CO, 7^th MTBN, 1^st FSSG, CamPen, CA to report to I & I Staff, San Juan, Puerto Rico, no later than 31Jan97 for duty, a writing which would, if genuine, apparently operate to the legal harm of another, which writing was, as he then well knew, falsely made, and which writing was used to the legal harm of Department De Hacienda, Commonwealth of Puerto Rico, in that Sgt was allowed to bring his automobile into Puerto Rico without paying a luxury car tax of $3,568.25
	Findings:  to Charge I, II and III specifications thereunder, guilty.
	Sentence: Fine of $50.00 per month for 6 months, restriction for 2 months, reduction to LCpl, and punitive letter of reprimand.
	CA 970710: Sentence approved and ordered executed.

970911:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

970912:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

970912:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  The factual basis for this recommendation was you were found guilty of conspiring with Lance Corporal to make a false official statement to your landlord, by preparing false official Permanent Change of Station (PCS) orders; of making a false official statement to manager of Shadow Way Apartments, by presenting those false PCS orders to her; of making a false official statement to Department De Hacienda, Commonwealth of Puerto Rico, by presenting false PCS orders to their representatives; of defrauding Shadow Way Apartments by presenting false PCS orders which allows you to break your lease without penalty and avoid payment of $605.00; and of defrauding Department De Hacienda, Commonwealth of Puerto Rico, by presenting false PCS orders to their representatives, which allowed you to bring your vehicle into Puerto Rico, without paying a luxury tax of $3,568.25.

971118:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to the commission of a serious offense, that the misconduct warranted separation, and by a vote of 2 to 1 recommended discharge general (under honorable conditions).

980112:	SJA review determined the case sufficient in law and fact.

980112:	GCMCA [Commanding General, 1^st Force Service Support Group] directed the applicant's discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 980115 general (under honorable conditions) for misconduct due to the commission of a serious offense (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.  The applicant states his discharge was inappropriate because he was administratively discharged just prior to the end of his enlistment contract.   The Board found no impropriety or inequity in the applicant’s administrative separation proceedings.
An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to the commission of a serious offense, that the misconduct warranted separation, and by a vote of 2 to 1 recommended a general (under honorable conditions) characterization of service.  The applicant’s overall service record and positive attitude he displayed after his court-martial were likely factors that contributed to the separation authority granting a discharge under honorable conditions (general), rather than under other than honorable conditions.  Relief denied.

Issue 2.  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 injustice must have existed during the period of enlistment in question.  No such error or injustice occurred 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, or good conduct in civilian life, subsequent to leaving the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct.  The applicant did not provide sufficient documentation to warrant an upgrade to his discharge, particularly regarding community service.  He 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.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 Aug 95 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 107, false official statements; and Article 123, false writings.

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 “afls10.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:  A6730/A9221/A9217