Author: CAP
Last saved by: shirley.robertson
Company: NCPB

Docket No. MD05-00238

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

ex-PFC, USMC
Docket No. MD05-00238

Applicant’s Request

The application for discharge review was received on 20041119.  The Applicant requested the characterization of service received at the time of discharge be changed to honorable.  The Applicant requested a documentary record review.  The Applicant did not list a representative on his DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050118.  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

Applicant’s issues, as stated on the application:

1.  “My discharge was inequitable because it was based on an isolated event and the punishment was too harsh considering my past and present record.

Please take into account (consideration) that in the past two years my civil record has been spotless.”

Documentation

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

Applicant’s letter to the Board w/attachment, dtd 01 April 2004
Character reference, dtd September 23, 2002
Character reference, undated
Character reference, undated
Character reference, dtd 23 October 2003
Character reference, dtd 18 Oct 02
Character reference, dtd 20 Oct 02
Character reference (e-mail), dtd October 21, 2002
3 pages from Applicant’s SRB (copied front and back)
Applicant’s DD Form 214
6 pages from Applicant’s discharge package (some copied front and back)
4 pages of e-mail communication concerning the Applicant’s discharge 
   (copied front and back)

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR (J)		970626 - 980818	COG

Period of Service Under Review:

Date of Enlistment:  980819		Date of Discharge:  021115

Length of Service (years, months, days):

	Active:   04  02  27 (Accounts for legal hold beyond EAS.)
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  48

Highest Rank:  Cpl		MOS:  6046 (Aviation Maintenance Administration 
Clerk)

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (12)			Conduct:  3.9 (12)

Military Decorations:  CertComm

Unit/Campaign/Service Awards:  NDSM

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:

970624:	Initial enlistment contract documents admission of pre-service marijuana experimentation.  Enlistment waiver was granted. Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

000110:	Counseled for deficiencies in performance and conduct.  [Misuse of government property.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000110:	NJP for violation of UCMJ, Article 86:  Failed to go to appointed place of duty.
Violation of UCMJ, Article 92:  Failed to obey a lawful order.
Awarded 5 days restriction and extra duties.  Not appealed.

000818:	Counseled for deficiencies in performance and conduct.  [Failure to inform superiors of traffic court appearances.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

010202:	Counseled for deficiencies in performance and conduct.  [Deficiencies in Performance and/or conduct.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

011121:	Counseled for deficiencies in performance and conduct.  [Overweight in excess of the allowable body fat standard.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020128:	Counseled for deficiencies in performance and conduct.  [Unauthorized absence/late for work.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

020211:	NJP for violation of UCMJ, Article 86:  … UA from his prescribed remedial physical training …
Awd red to E-3/LCpl, forf of $734.00 per month for 2 months, and 45 days restriction and extra duties.  Forf and restriction, extra duties susp for 6 mos.  Not appealed.

020236:	Counseled for deficiencies in performance and conduct.  [Continued lack of progress (on) Remedial Physical Training.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020725:	Applicant informed he would be held beyond his EAS on legal hold pending Special Court-Martial.

021105:	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: violating a lawful general order … ; Article 128: assault; and Article 134: communicating a threat.

021108:	SJA review determined the case sufficient in law and fact.

021108:	GCMCA [Commanding General, 2d 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 20021115 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:  A service characterization 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 United States 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 wherein the type of service rendered or the character of discharge received may have a bearing.  The Applicant stated he understood the elements of the offenses with which he was charged.  He admitted he was guilty of violating UCMJ Article 92: violating a lawful general order … ; Article 128: assault; and Article 134: communicating a threat.  An upgrade to honorable conditions would be inappropriate.  Relief denied.  

Additionally, the Applicant states his discharge was based on “an isolated event.”  The record does not support this contention.  The Applicant’s service record is marred by several negative page eleven counseling entries and the award of nonjudicial punishment (NJP) on two separate occasions for unauthorized absence and failure to follow a lawful order.  As noted above, the Applicant requested separation from the Marine Corps to escape trial by Court-Martial.  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 his discharge proper and equitable.   Relief denied.

The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board (NDRB).  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veteran’s benefits.  This issue does not serve to provide a foundation upon which the Board can grant relief.  

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 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 documentation of good character and conduct to mitigate his disobedience of the orders and directives that regulate good order and discipline in the naval service while on active duty.  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 P1900.16F), effective 
01 September 2001 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, unauthorized absence; Article 92, Failure to obey order or regulation; Article 128, Assault; Article 134, Wrongfully communicating a threat.

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.