Author: CAP
Last saved by: shirley.robertson
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Docket No. MD04-01359

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

ex-LCpl, USMC
Docket No. MD04-01359

Applicant’s Request

The application for discharge review was received on 20040823.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests 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 20041222.  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

No issues were submitted by the Applicant.

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:   None
	Inactive: USMCR(J)		940701 - 990625	COG

Period of Service Under Review:

Date of Enlistment:  950626		Date of Discharge:  990726

Length of Service (years, months, days):

	Active:   04  01  01
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  59

Highest Rank:  Cpl			MOS:  0151

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.5 (10)			Conduct:  4.4 (10)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, CoC (2), GCM, LoA

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:

960801:	Counseled for deficiencies in performance and conduct.  [Viol of Article 92]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

970723:	Counseled for deficiencies in performance and conduct.  [Frequent involvement in domestic violence]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

980629:	Counseled for deficiencies in performance and conduct.  [Instances of domestic dispute.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

990604:	Applicant charged with Violations of UCMJ.
Article 91:  Spec 1:  Disobey a lawful order to wit: Do not enter CAC without an escort.  Spec 2:  Disobey a lawful order to wit: Do not enter CAC without an escort. 
Article 92:  Derelict in performance of duties, to wit complete BST correctly.  
Article 107:  Spec 1:  With intent to deceive sign an official record [PAR], which was false.  Spec 2:  With intent to deceive sign an official record [PAR], which was false.  Spec 3:  Withdrawn.  Spec 4:  Make an official statement which was totally false.
Article 134:  Spec 1:  With intent to receive BAH, make a claim against the government for $303.60 per month.  Spec 2:  With intent to receive a wavier of indebtedness for $1378.82 per month make a false statement.

990618:	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 admitted guilt to the following violations of the UCMJ, Article 92; disobey a direct order on 990514 and 990518, dereliction of duty on 990407, Article 107, false official statement on 990408, 990413, 990514 and 990518; Article 134, fraud against the government on 990408 and 990413.
 
990719:	SJA review determined the case sufficient in law and fact.

990719:	GCMCA [CG, 2d MAW] 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 19990726 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).

The Applicant introduced no decisional issues for consideration by the Board.

On 19990618, the Applicant 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 was guilty of the offenses.  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.

When a Marine’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 violations of Articles 91, 92, 107 and 134 of the UCMJ.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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 naval service.  The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided any documentation for the Board to consider.  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.  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 31 August 2001.

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 92, disobey a lawful order.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		Secretary of the Navy Council of Review 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.