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Docket No. MD02-00299

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

 ex-LCpl, USMC
Docket No. MD02-00299

Applicant’s Request

The application for discharge review, received 020117, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance hearing discharge review before a traveling panel.  The applicant listed the American Legion as the representative on the DD Form 293.  In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel, all hearings are held in the Washington, D. C. area.  The Naval Discharge Review Board (NDRB) also advised that the Board first conducts a documentary Review prior to any personal appearance hearing. 

Decision

A documentary discharge review was conducted in Washington, D.C. on 020829.  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/IN LIEU OF TRIAL BY COURT-MARTIAL, authority: MARCORSEPMAN Par. 6419.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  (Equity Issue) His violations of the UCMJ notwithstanding, this former member opines that his overall service record is sufficient to warrant a fully honorable discharge.

2.  (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.

Documentation

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

Copy of DD Form 214
Letters of Recommendation (2)
Employment Reference Letter

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		930830 - 940705	COG

Period of Service Under Review:

Date of Enlistment:  940706		Date of Discharge:  970909

Length of Service (years, months, days):

	Active:   03  02  04
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  43

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (9)			Conduct:  4.0 (9)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, Rifle Marksman Badge

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT-MARTIAL, authority:  MARCORSEPMAN Par. 6419.

Chronological Listing of Significant Service Events:

951220:	Counseled for deficiencies in performance and conduct.  [Although aware that he was prohibited to consume alcohol at his age, applicant was found intoxicated and disorderly at Barracks 230.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

970403:	Counseled for deficiencies in performance and conduct.  [Concerning the use of nitrous oxide in an unauthorized manner, namely, inhaling to cause an effect of intoxication.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

970806:	Counseled for deficiencies in performance and conduct.  [Concerning the destruction of government property, namely a glass window valued at $30.00; the property of the government.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

970806:	NJP for violation of UCMJ, Article 108: At NAS Fallon, NV, destroyed a glass window valued at $30.00 that was the property of the government.
Awarded forfeiture of $75.00 pay per month for 2 months, restriction for 30 days, reduction to E-2 (suspended for 6 months).  Not appealed.

970819:	Applicant, having consulted with counsel certified under UCMJ, Article 27b, requested discharge for the good of the service to escape trial by court-martial.  In the request the applicant noted that his counsel had fully explained the elements of the offenses for which he was charged and that he understood the elements of the offenses.  He further certified a complete understanding of the negative consequences of his actions and that characterization of service would be under other than honorable conditions.  The applicant admitted guilt to the following violations of the UCMJ:  Charge I: Violation of the UCMJ, Article 80: Spec 1: Attempt to steal government property; Spec 2: Attempt to possess a controlled substance; Charge II: Violation of the UCMJ, Article 107: False official statement; Charge III: Violation of the UCMJ, Article 108: Wrongful disposition of military property; Charge IV: Violation of the UCMJ, Article 121: Larceny; Charge V: Violation of the UCMJ, Article 128: Assault; Charge VI: Violation of the UCMJ, Article 134: Spec 1: Communicate a threat; Spec 2: Violation of Title 10, California Public Health and Safety Code (wrongful possession of Nitrous Oxide).

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

970827:	GCMCA [Commanding General, 3d Marine Aircraft Wing] determined that applicant had no potential for further service, that separation in lieu of trial by court-martial was in the best interest of the service, and directed discharge under other than honorable conditions by reason of conduct triable by courts-martial.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 970909 under other than honorable conditions in lieu of trial by court-martial (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 Board found no inequity in the characterization of the applicant’s service.
On 970819, the applicant, having consulted with counsel certified under UCMJ, Article 27b, requested discharge for the good of the service to escape trial by court-martial.  In the request the applicant noted that his counsel had fully explained the elements of the offenses for which he was charged and that he understood the elements of the offenses.  He further certified a complete understanding of the negative consequences of his actions and that characterization of service would be under other than honorable conditions.  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.  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, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence that the applicant is drug free, are examples of verifiable documentation 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.  Relief is 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 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL, 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 statement, Article 108, destruction of government property, Article 121, larceny, Article 128, assault, and Article 134, communicate a threat.

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:  A7400/A9217/A9221/A0137/A7005/