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

 ex-LCpl, USMC
Docket No. MD01-01072

Applicant’s Request

The application for discharge review, received 010810, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020417.  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:  BAD CONDUCT DISCHARGE/As a result of a courts-martial (SPCM) – Other, authority: MARCORSEPMAN Par. 1105.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  My discharge was inequitable because it was based on one isolated incident during a 10-year career, which included no other adverse action.  The discharge does not reflect my otherwise unblemished record and did not take into account my contributions, achievements & sacrifices during the previous decade. I never received any official notification of my case or my discharge; the estimated discharge date has been provided. 

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		760908 - 790730	HON
	Active:   USMC		790731 - 830301	HON
	Inactive: USMCR(J)		760331 – 760907	COG

Period of Service Under Review:

Date of Enlistment:  830302		Date of Discharge:  880711

Length of Service (years, months, days):

	Active:    05  02  10
	Inactive:  None

Age at Entry:  26			Years Contracted:  4 

Education Level:  13			AFQT:  85

Highest Rank:  SSgt

Final Enlisted Performance Evaluation Averages (number of marks): All enlisted performance reports were available to the Board for review.

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM(3RD), SSDR, Rifle Expert Badge(5th), LOA 

Days of Unauthorized Absence:  None 

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

BAD CONDUCT DISCHARGE/As a result of a courts-martial (SPCM) - Other, authority:  MARCORSEPMAN Par. 1105.

Chronological Listing of Significant Service Events:

830302:	Reenlisted at COB, HQSVCBN, MCB CAMBUT FPO SEATTLE, WA for 4 years.

860818:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 81: In that Staff Sergeant D____W. L____ U.S. Marine Corps, Recruiting Station Lansing, Michigan, 9t Marine Corps District, Western Recruiting Region, did while on active duty, at or near Recruiting Station Lansing, Michigan, on or about 860428, conspire with Corporal C____ C. C_____, U.S. Marine Corps, and Sergeant T_____ E. G______, U.S. Marine Corps, to commit an offense under the UCMJ, to wit: to evade and compromise a random urinalysis test ordered by the Commanding Officer of Recruiting Station Lansing, by agreeing and arranging for each of the said Marines to wrongfully submit a urine sample which was not their own, and in order to effect the object of the conspiracy the said Staff Sergeant L_____ met with Corporal C_____ and Sergeant G____ the night before the urinalysis test and provided the urine of an unknown persons or persons for each of them to use as their own urine sample.  Charge II:  violation of the UCMJ, Article 92: (2 Specifications),
	Specification 1: In that Staff Sergeant D____W. L____ U.S. Marine Corps, Recruiting Station Lansing, Michigan, 9t Marine Corps District, Western Recruiting Region, did, while on active duty, at Recruiting Station Lansing, Michigan, on or about 860429, having knowledge of his duties, was derelict in the performance of those duties in that he willfully failed to provide a sample of his own urine at the Recruiting Station Lansing, Michigan, urinalysis test as it was his duty to do; Specification 2: In that Staff Sergeant D____W. L____ U.S. Marine Corps, Recruiting Station Lansing, Michigan, 9t Marine Corps District, Western Recruiting Region, having knowledge of a lawful order issued by the Commanding Officer, Recruiting Station Lansing, to submit a specimen of his urine for a urinalysis test, an order which it was his duty to obey, did, while on active duty at Recruiting Station Lansing, on or about 860429, fail to obey the same, by wrongfully failing to provide a current specimen of his own.  Charge III: violation of the UCMJ, Article 107: In that Staff Sergeant D____W. L____ U.S. Marine Corps, Recruiting Station Lansing, Michigan, 9t Marine Corps District, Western Recruiting Region, did, while on active duty, at Recruiting Station Lansing, Michigan, on or about 860429, make a false statement by handing a filled urine specimen bottle to Captain K. L. Rowe, U.S. Marine Corps, thus indicating that he had just filled the bottle by urinating into it, which statement was wholly false and known by Staff Sergeant L____ to be false.  Charge IV: violation of the UCMJ, Article 112a: In that Staff Sergeant D____W. L____ U.S. Marine Corps, Recruiting Station Lansing, Michigan, 9t Marine Corps District, Western Recruiting Region, did, while on active duty, at or near Recruiting Station Lansing, Michigan, on or about 860505, wrongfully use Marijuana.  Charge V: violation of the UCMJ, Article 134: In that Staff Sergeant D____W. L____ U.S. Marine Corps, Recruiting Station Lansing, Michigan, 9t Marine Corps District, Western Recruiting Region, did, while on active duty, at or near Recruiting Station Lansing, Michigan, on or about 860429, while participating in a urinalysis test, wrongfully submit a urine sample which he knew was not his own, such conduct by a Staff Noncommissioned Officer in evading and compromising a lawful urinalysis test, with the knowledge of junior enlisted Marines, was prejudicial to good order and discipline. 
	Findings:  to Charge I and specification thereunder, guilty.  To Charge II and specification 1 thereunder, dimissed on motion of defense for multiciplity, specification 2 thereunder, guilty.  To Charge III and specification thereunder, guilty.  To Charge IV and specification thereunder, guilty.  To Charge V and specification thereunder, guilty.
	Sentence:  Confinement for 3 months, forfeiture of $200.00 pay per month for 5 months, reduction to E-1, and a bad conduct discharge.
	CA 861104:  Sentence approved and ordered executed except for the BCD.  The deferment of the sentence to confinement was deferred on 860818 and the deferment expired on 860824.
 
871208:	NMCCMR:  Affirmed findings and sentence.

880621:	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 880711 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 in the legal chain of review 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 implies that a permissive doctrine exists whereby one in the military is allowed a “single misdeed”.  The Board believes that the applicant is confusing this with the civilian world wherein some offenses are treated with leniency because they are a first time incident on an otherwise clear record.  No such leniency exists in the military.  The applicant is responsible for his actions and must accept the consequences of his misdeeds.  The Board will not grant relief on the basis of this issue.

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.  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 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURTS-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16C), effective 821001 until 890626. 

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 81, conspiracy; Article 92, failure to obey a lawful general order; Article 107, false statement; Article 112a, wrongful use of a controlled substance; Article 134, wrongful submission of a urine sample.

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