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

 ex-2NDLT, USMC
Docket No. MD01-00751

Applicant’s Request

The application for discharge review, received 010508, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to convenience of the Government.  The applicant requested a documentary record discharge review.  The applicant did not designate a representative on the DD Form 293.  Subsequent to the application, the applicant obtained representation by the American Legion.  Applicant's representative requested that the reason for separation be change to "Secretarial Authority".

Decision

A documentary discharge review was conducted in Washington, D.C. on 020320.  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 and narrative reason of the discharge shall not change.  The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/RESIG - UNACCEPTABLE CONDUCT, authority: MARCORSEPMAN Par. 4104 & SECNAVINST 1920.6A.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  Dear members of the board:  The following issues are the reasons my discharge should be upgraded from a general discharge to an honorable discharge.  I respectfully and humbly request that if you disagree, please explain, in detail, why. On 17 May, 1999, I was wrongfully accused of lewd conduct.  Because of the nature of the accusation and my status as an officer (2nd Lt.), my chain of command decided to expedite my discharge, and was not willing to await the outcome of my civilian court appearance.  I was charged under Article 133 of the UCMJ and given NJP on 7 June, 1999.  The entire discharge process was extremely humiliating.  Given the situation, I had no other alternative than to resign my commission with much regret.  I have provided you [enclosure (1)] a copy of the Superior Court action description dated 2 March, 2000, which states that all charges against me were dismissed.  Now that the charges have been dismissed, I wish to have my discharge upgraded. I also respectfully request that you take into account my exceptional record as Marine.  I was given an honorable discharge as lance corporal upon receipt of my acceptance into OCS.  I received meritorious mast, meritorious promotion to lance corporal, 0311 (rifleman) honor graduate at Infantry Training Battalion, and I maintained perfect PFT scores as well as high pro/con marks throughout my career.  I also completed OCS, TBS, and Aviation Maintenance Officer school. I have also enclosed copies of character reference letters [enclosure (2)] from friends, family, colleague, and fellow Marines, which I hope shed some light on the person that I am. I am grateful for your consideration of this matter.

Documentation

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

Copy of DD Form 214 (2 copies)
Superior Court of CA Decision dtd 03/02/00 (2 copies)
Character Reference ltr from spouse 
Character Reference undtd ltr from L_ H_ 
Character Reference ltr from S_ B. H_ (father-in-law) dtd July 19, 1999
Character Reference ltr from 1stLt R_ W_ dtd 29 July 1999
Character Reference undtd ltr from G_ A. B_
Character Reference ltr from P_ S. M_ dtd Aug 12, 1999
Character Reference ltr from T_ B_ dtd July 21, 1999
Character Reference ltr from D_ L. H_ dtd August 15, 1999
Character Reference ltr from N_ M. R_ dtd August 7, 1999
Character Reference ltr from R_ & H_ K_ dtd August 1, 1999
Character Reference ltr from Col. J.E. J_ dtd 5 Sep 2001
Applicant's ltr to the Board dtd 7 Sep 2001 providing additional info
Verification of Enrollment from Flight Safety dtd August 30, 2001
Certificate of Course Completion (Private Pilot Airplane Ground School) from Flight Safety Academy dtd 28 June 01
Certificate of Course Completion (Private Pilot Certification) from Flight Safety Academy dtd 16 Aug 01
LaserGrade Computer Test Report dtd 06/29/2001
Certificate of Completion (Solo Flight) from Flight Safety Academy dtd 21 Jul 01
Certificate of Course Completion (Commercial Pilot Airplane Ground School) from Flight Safety Academy dtd 5 Sep 01
LaserGrade Computer Test Report dtd 09/06/2001
Certificate of Course Completion (Multi-Engine Airplane rating Ground School) from Flight Safety Academy dtd 13 Sep 01
State of Florida, Dept of Highway Safety and Motor Vehicles driving record
Applicant's Letter of Reprimand dtd Jun 7, 1999
Applicant's Notification of Article 15 UCMJ Hearing dtd May 27, 1999
Applicant's Acknowledgement of NJP Appeal Rights dtd Jun 7, 1999
Applicant's Request for Resignation dtd 30 Jul 99
Separation Approval dtd 28 Dec 99
Superior Court of California, Public Docket, Case Actions 05/24/99 through 03/07/00

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		961015 - 980402	HON(To accept commission)
	Inactive: USMCR(J)		960614 - 961014	COG

Period of Service Under Review:

Date of Commission:  980403	Date of Discharge:  991228

Length of Service (years, months, days):

	Active:  01  08  26
	Inactive:  None

Age at Entry:  30			Years Contracted:  8

Education Level:  16			AFQT:  68

Highest Rank:  2NDLT

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

Military Decorations:  None

Unit/Campaign/Service Awards:  Pistol Sharpshooter Badge, Rifle Sharpshooter Badge, MM

Days of Unauthorized Absence:  None 

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

GENERAL (UNDER HONORABLE CONDITION)/RESIG - UNACCEPTABLE CONDUCT,  authority:  MARCORSEPMAN Par.4104 & SECNAVINST 1920.6A.

Chronological Listing of Significant Service Events:

990527:	Application notified of Article 15 UCMJ hearing and given all rights, including trial by court-martial.

990602:	Acknowledged his rights and having consulted with counsel, waived right to demand trial by court-martial. 

990607:	NJP for violation of UCMJ, Article 133: conduct unbecoming officer; violation of UCMJ, Article 134:  indecent exposure
Awarded letter of reprimand.  

990607:	Acknowledged rights of appeal of the NJP held 7 Jun 99 and applicant elected not to appeal the imposition of NJP.  

990607:	Letter of reprimand issued to applicant.

990611:	Applicant elected not to appeal the issuance of the letter or to submit a statement.

990623:	CO, MAG39, 3D MAW reported to the CMC of applicant's NJP action on 7 Jun 1999 for violation of Article 133 and 134 whereby he was awarded of a Letter of Reprimand.  Additionally, advised applicant is submitting a letter of resignation and requested leave awaiting separation.

990730:	Applicant tendered a resignation of commission in lieu of processing for administrative separation for cause, acknowledging that such separation considered to be under honorable conditions.

991228:	GCMCA [CO, MAG 39] approved applicant's resignation/separation and directed the applicant's discharge with a general under honorable conditions by reason resignation - unacceptable conduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 991228 with a General (Under Honorable Conditions) by reason of resignation - unacceptable conduct (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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).

Issue 1.  The fact that the applicant’s civilian charges were dismissed does not make the applicant’s non-judicial punishment he received under the UCMJ inequitable or improper.  The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions. Further, there is no evidence that the command abused its authority when it initiated separation proceedings. A characterization of service of under honorable conditions (general) 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 award of nonjudicial punishment (NJP) for offenses triable by court-martial while serving as a commissioned officer.  No other narrative reason for separation more clearly describes the conditions surrounding his discharge.  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 injustice must have existed during the period of service in question.  No such error or injustice occurred during the applicant’s service.  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.  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.  The Secretary of the Navy Instruction 1920.6A of 21 Nov 1983 (Administrative Separation of Officers), establishes policies, standards and procedures for the administrative separation of navy and Marine Corps officers from the naval service in accordance with Title 10, United States Code and DoD Directive 1332.30 of 15 Oct 81.

B.  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.  

C.  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.

D.  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