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Docket No. MD04-00060

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

ex-PFC, USMC
Docket No. MD04-00060

Applicant’s Request

The application for discharge review was received on 20031006.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to Secretarial Authority.  The Applicant requests a documentary record review.  The Applicant listed the American Legion as his representative on his DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040628.  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: 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 stated

“Issue 1.  My discharge was inequitable because it was based on an incident which led to an altercation which while off duty and off base in which I was forced to defend myself because I feared for my life and the life of fellow Marines.
This incident that led to my discharge occurred the night of Friday April 8, 2000. Earlier in the day one of my good friends from my unit was processed out and was flying home the next morning. Some of my friends and I thought it would be a good idea to go out together one more time. We decided to go to a sports bar near the campus of Cal State Fullerton because one of my buddies and a former Marine was a graduate student there. We all knew the place pretty well and picked it because it was so laid back. We arrived about 11:00 p.m. and we hung out for a couple of hours or so. I was in the company of about four of my buddies and two of their wives.
It had been an uneventful night pretty much so when the bar was ready to close I told my friends that they could meet me at the car while I stayed to use the restroom. As I stepped out of the bar there was a group of about thirteen visibly drunk guys outside of the bar. I tried to slide past one who was wavering back and forth drunk. The guy bumped into me, not really hard or anything. When I said sorry to him he jumped at me cursing and saying he and his buddies were going to beat me up. Now remember at this time I am by myself confronted by about thirteen drunken rather large guys. So instead of making a bad situation worse I tried to defuse the situation by telling them I did not want any trouble and I was just going to my car. The main rowdy drunk then told me they would be at their cars waiting for me. So I said okay with the thought of simply going to my friend’s car getting in and driving off.
We were parked pretty much on the far end of this huge parking lot. I finally get to where my friends are and start explaining what had happened as we were getting in the car. All of a sudden all of these drunken guys show up by the cars we were in trying to challenge my buddies and me to fight. We explained once again we did not want to get into any trouble. They started to surround us. Right then my buddy Jaime popped his trunk and said to me if we have to I have a baseball bat in the trunk. I looked at him and said okay. We kept pleading with the guys to leave us alone. Even the women we were with tried to tell them we just wanted to leave. There was no way out and we were cornered. At this time we figured that we were going to be in a fight. Everything I had been taught from day one of being a Marine was that we stick together no matter what the odds. If there was to be a fight even with odds of 13-4 I was not going to let my buddies down and vice versa.
It happened quickly, all of sudden four guys lunged and grabbed my friend Jaime knocking my friend’s wife to the ground and began beating him. The others in the group jumped at everyone else. At this time I felt a clear and present danger of imminent bodily harm or worse to my Marines and their wives. I already saw they had no regard even for the women when they knocked my friend’s wife to the ground. From this point on I just reacted as I had been taught and that is do not start trouble but if it comes to you and you have to defend your Marines then you finish it. I reactively grabbed the baseball bat out
of the trunk because I was the closest to it. I started swinging the bat wildly to get them off of my friends who were being beaten. Mind you that it was an aluminum bat and I knew that if I had hit someone I could have killed him. With that said I was really just trying to scare the attackers off. Screaming and yelling profanities and running around swinging in the air. It worked. The drunken guys began to back off long enough so we could regroup into a small unit by one of the cars. They looked like they were going to charge us again when finally the police came over.
I walked right over to the police told them everything that had happened pointed to my buddies two of which were beaten bloody (one would later need stitches). I did not try to lie or cover up anything to the police. I seriously thought that our lives were in danger. These guys were huge and I am 6’ but only about 175 pounds. I then heard one guy say I hit him with the bat in the back. He said I did not hit him hard but I hit him anyway. I told the police I did not know if I hit anybody but if I wanted to I could have seriously hurt or killed someone. I told them I was trying to defend my friends, their wives, and myself from these drunken guys. The police then told me I was under arrest for aggravated assault. I could not believe it, here my friends are beaten bloody right there in front of the police but I’m the only one to get arrested? Where was the justice? Then to top it all off the guys who tried to jump us were all Marine N.C.O.s. When they found out we were all Marines too they felt really stupid. They all tried to apologize and pleaded with the police to release me, but it was to late.
To this day I still do not know why these Marines never faced disciplinary action or never even had to answer for why they were so out of control that night. I was the only African-American there that night and I am not saying it was racism but it is a little fishy to me. The police even watched thirteen super drunk guys get into their cars and drive off into the night without even questioning them on if they were all right to drive. The police took me to the station where I was always respectful and answered all questions the best I could without regard to my own legal situation because I always thought that I was in the right all the time. The next day I was released and sought to get private counsel on the matter. The attorney I retained told me about a week later that the police had no record of my arrest and that I was not arrested but only detained. Once again I could not believe it, if I was not arrested why did I spend fourteen hours in the Fullerton Orange County jail, and why was there no record of me even being there other than what paperwork the police gave me that night.
The civilian authorities dropped the charges and referred the case to the Marine Corps, which led to a Court Martial.

Issue 2.  Fullerton Police Department Report contains information to support the details of what took place that evening and how I was the only person punished (Marine or civilian) yet others were involved.

Issue 3.  Affidavit obtained from Cpl. J B, USMC, indicating he was unhurt and felt the Court Martial was too serious and not necessary or appropriate.

Issue 4.  My civilian attorney had a difficult time obtaining information from the legal office at 29 Palms in a timely way. (Please see attached letter dated May 3, 2000) Also, having some health issues, I opted to accept an “Other than Honorable” discharge rather than take family or myself through the ordeal and further expense of a Court Martial.

Issue 5.  Clemency is warranted because it is an injustice for me to continue to suffer the adverse consequences of a bad discharge. I am unable to apply for or get a good job because of the characterization of my discharge. I applied for a state of Illinois job and could not get the benefit of serving in the military as a preference for a state job because I was not honorably discharged.

Issue 6.  My average conduct and efficiency ratings/behavior and proficiency marks were
pretty good.

Issue 7.  I received awards and decorations as follows: Letter of Appreciation, Rifle
Marksman Badge, Sea Service Deployment Ribbon w/1*, Meritorious Unit
Commendation.

Issue 8.  I received letters of recommendation for Basic Forward Observer Course and
Combat Lifesaver Course.

Issue 9.  I was so close to finishing my tour that it was unfair to give me a bad discharge. I
do know that this decision was purely a personal one to keep me so long past my EAS when other Marines were discharged honorably for more serious infractions.

Issue 10.  I have been a good citizen since my discharge as I have been a student at De Paul University here in Chicago working on a degree in Marketing and Business. I have not had any altercations with the law in any matter nor have I had any problems as a citizen or with my fellow neighbors or countrymen at any time since my discharge. I have moved forward with my life.

Issue 11.  My record of NJPs/Article 15s indicates only isolated or minor offenses.

Issue 12.  My record of UA indicates only minor or isolated offenses.

Issue 13.  Administrative Decision (please refer to attached) indicated my military service was under honorable conditions for VA purposes. Please consider the DETAILED explanation of the VA decision along with the “Request for Separation” submitted by the service department, the Trail Counsel comments as indicated in the attached VA report that I had served honorably for approximately three years, eleven months and two weeks of my four year obligation period prior to the incident.

Additional issues submitted by Applicant’s counsel/representative (AMERICAN LEGION):

Issue 14.  “In accordance with 32 C.F.R., section 724.166, and SECNAVINST 5420.174C, enclosure (1), paragraph 1.16, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the following statement in support of this Applicant’s petition.

Our review of the service record reflects that this Applicant had satisfactory overall PRO/CON markings of 4.0/3.9 and was issued a LOA, RMB, SSDR w/star, MUC.  He was awarded NJP on 980610 for VUCMJ, Arts. 86 (2 specs), 91 and NJP on 981020 for VUCMJ, Art. 86.  SPCM charges were pending for VUCMJ, Arts. 112a, 128 at the time the request for administrative separation was submitted.  The request was granted and he was discharged Under Other Than Honorable Conditions in lieu of trail by court-martial as authorized by MARCORSEPMAN, Par. 6419.

Essentially, as noted on DD Form 293 attachments, this Applicant contends in his 13 issues that his character of service and narrative reason should be upgraded because he was unfairly singled out and charged with assault which was over blown and in fact self-defense, because the characterization received is to harsh in light of his overall service record and because his positive post-service conduct warrants clemency relief.  He has submitted 15 pages of documentation that support his issues and attest to his good post-service character, hard work educational pursuits and community involvement for the Board’s consideration.

Following through review of the evidentiary record, we opine that the issues raised on DD Form 293 attachments amply advance this former member’s contentions and substantially reflect the probative facts needed for equitable review.  We, accordingly, rest this case on the evidence of record.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist and support this former member in resolving any improprieties or inequities in the character and basis for discharge.  Moreover, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 U.S.C., section 1553, and set forth in 32 C.F.R., part 724; and SECNAVINST 5420.174C, enclosure (1).

This case is now respectfully submitted for deliberation and disposition.”

Documentation

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

Copy of DD Form 214
Attorney representation ltr, dtd May 3, 2000
Character reference, dtd June 16, 2003
Character reference, dtd July 7, 2003
Character reference, dtd June 30, 2003
Character reference, dtd 7-23-03
Character reference, dtd July 12, 2003
Character reference, dtd July 12, 2003
Department of Veterans Affairs Administrative Decision, dtd 8-6-02
Affidavit from Cpl J_ L. B_

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None			HON
	Inactive: USMCR (J)		960325 - 960421	COG

Period of Service Under Review:

Date of Enlistment:  960422		Date of Discharge:  000726

Length of Service (years, months, days):

	Active:   04  03  05 (does not include lost time)
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  73

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0 (10)			Conduct:  3.9 (10)

Military Decorations:  LtrApp

Unit/Campaign/Service Awards:  SSDR (w/1 star)

Days of Unauthorized Absence:  980526 – 980602 (6)

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:

960324:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

970523:	Counseled for deficiencies in performance and conduct.  [Liberty incident which occurred at the New Sanno Hotel, Tokyo Japan on 16 March 1997.  Damage was done to the hotel room which resulted in a bill of approximately $600.00.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

980122:	Counseled for deficiencies in performance and conduct.  [Late to formations, dirty room, personal hygiene and  (Applicant’s) lackadaisical attitude.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

980305:	Counseled for deficiencies in performance and conduct.  [Not maintaining Marine Corps standards for room cleanliness and not maintaining proper gear accountability.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

980609:	NJP for violation of UCMJ, Article 86 (2 specs):
Specification 1:  on or about 0730, 24 May 1998, without authority, absent himself from his unit and did remain so until on or about 1030, 2 Jun 1998.
Specification 2:  on or about 0730, 6 Jun 1998, without authority, absent himself from his place of duty and did remain so until on or about 1700, 7 Jun 1998. 
NJP for violation of UCMJ, Article 91:  on or about 0730, 6 Jun 1998, willfully disobeyed a lawful order from SSgt D_.
Awd forf of $256.00 per month for 1 month, 14 days restriction and extra duties.  Not appealed.

981020:	NJP for violation of UCMJ, Article 86:  on or about 0530, 23 Sep 1998, without authority, absent himself from his place of duty and did remain so until on or about 0655, 23 Sep 1998. 
Awd forf of $256.00 per month for 1 month, 14 days restriction and extra duties.  Not appealed.

990610:	Counseled for deficiencies in performance and conduct.  [Violation of Article 86 U. A. and poor judgment.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

000104:	NJP for violation of UCMJ, Article 86:  on or about 0600, 16 August 1999, without authority, absent himself from his unit and did remain so until on or about 11006, 16 August 1999. 
Awd Red to E-2, forf of $563.00 per month for 2 months, 45 days restriction and extra duties.  Not appealed.

000705:	Applicant, having consulted with counsel certified under UCMJ Art 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 honorable conditions.  The Applicant was charged with violations of UCMJ, Articles 112a and 128.  He admitted guilt to violation of the UCMJ, Article 128Assault consummated by battery.

000712:	SJA review determined the case sufficient in law and fact.

000718:	GCMCA [Commanding General, 1^st Marine Division (Rein)] 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 20000726 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).

Issues 1 – 4 & 14:  A characterization of service of under other than honorable conditions is warranted when the member’s conduct constitutes a significant departure from that expected of a member of the U. S. Marine Corps.  In a signed statement, the Applicant requested an administrative discharge under other than honorable in lieu of a trial by court-martial.  He consulted with counsel and was fully advised of the implications of his request.  The Applicant understood that if discharged under other than honorable conditions, it might deprive him of virtually all veteran’s benefits based upon his current enlistment.  He also understood he might encounter substantial prejudice in civilian life in situations where the type of service rendered or the character of discharge received may have a bearing on the job application.  The Applicant stated he understood the elements of the offenses with which he was charged and he admitted he was guilty of violating Article 128:  Assault.  Relief denied.  

Issue 5:  The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as intimated in this issue.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board discovered no impropriety or inequity thereby considering the Applicant’s discharge proper and equitable.

Issues 6 – 8 & 13:  The Applicant contends that he served the United States well and he is entitled to an upgrade.  When a member’s service has been honest and faithful, it is appropriate to characterize that service as honorable.  An Under Other Than Honorable Conditions discharge 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 four negative page 11 counseling entries and three nonjudicial punishments (NJP) for being absent without authority and insubordination.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to conform to the requirements regulating good order and discipline in the Marine Corps.  His actions fall far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

Issues 9:  On 20000705, the Applicant requested discharge for the good of the service to escape trial by court-martial for wrongful use of a controlled substance and assault.  In the request the Applicant noted his counsel had fully explained the elements of the offenses for which he was charged and he admitted he was guilty of assault.  He further certified a complete understanding of the negative consequences of his actions and that characterization of service could be under other than honorable conditions.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

Issues 10:  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, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.  At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.  Relief denied.

Issues 11 & 12:  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.  While he may feel his misconduct consisted of “only minor or isolated offenses,” the Applicant’s service record is marred by award of nonjudicial punishment (NJP) on three separate occasions thus substantiating the characterization of his discharge. The Applicant’s summary of service clearly reflects his disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrating he was unsuitable for further service.  An upgrade to honorable conditions would be inappropriate.  Relief denied.

In cases where no other reason for separation set forth in the Naval Military Personnel Manual is appropriate, but where separation of a member is considered to be in the best interest of the service, the Secretary of the Navy has the authority to direct the separation of any member prior to the expiration of their term of service.  The applicant’s commanding officer determined the applicant had no potential for further naval service.  The basis for his determination is clearly documented in the service record.  No other narrative reason more accurately describes the reason the applicant was separated.  Therefore, it would be inappropriate for the NDRB to change the Applicant’s narrative reason to “Secretarial Authority.”  Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  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 86, Absence without leave, Article 91, Insubordinate conduct, Article 112a, Wrongful use, possession, etc., of controlled substances, and Article 128, Assault.

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.