Author: CAP
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Docket No. MD05-01037

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

FOR OFFICIAL USE ONLY

 ex-PFC, USMC
Docket No. MD05-01037

Applicant’s Request

The application for discharge review was received on 20050601.  The Applicant requests the Discharge 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 designate a representative on the DD Form 293.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051206.  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 by reason of separation in lieu of trial by court-martial.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1. My enlistment contract was breached by Marine Corp.  After completion of school I was guaranteed 3 years west coast.  Sent to Okinawa Japan in 2 years.  Never in trouble until I was in Okinawa.

2.  The discharge is inproper because I was never given a chance to attend alcohol rehab.  Every instance I got disciplined for was alcohol related.  Since my discharge I attended A.A. 12-Step program and I certify I haven’t had a drink in over eight years.  I have never been in trouble with law enforcement since discharged.

3.  Never went to trail I believe because of excessive beating M.P.’s did to me.  I can’t remember beating due to alcohol blackout, but whole body was bruised, broken nose, 2 black eyes etc.

4.  Thank you for your time. “

Documentation

Only the service record book was reviewed.  The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19901126 – 19910318		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19910319		Date of Discharge:  19950428

Length of Service (years, months, days):

Active:    03  11  11 (Excludes lost time) 
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  none
	Confinement:		  59 days

Age at Entry:  19 

Years Contracted:  6 

Education Level:  12				AFQT:  90

Highest Rank:  Cpl				MOS:  6316

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (14) 		Conduct:  4.1 (14)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Rifle Sharpshooter Badge, National Defense Service Medal, Good Conduct Medal, Armed Forces Expeditionary Medal with 1 Star, Joint Unit Commendation, Meritorious Mast, Letter of Appreciation.

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

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

Chronological Listing of Significant Service Events:

901126:	Quality Enlistment Program: Applicant agreed to 6-year enlistment contract; assignment to Occupational Field 63/6400 (Avionics); geographic assignment overseas; and a $5000.00 bonus.  Applicant certified understanding that the Marine Corps may assign him overseas sometime during his enlistment.

910701:	Administrative Remark: Applicant voluntarily changed his duty station to the West Coast vice the Overseas Assignment.  All other provisions remain in effect.

941123:	Squadron NJP for violation of UCMJ, Article 91: Insubordinate conduct toward noncommissioned officer.  On or about 8 November 1994, Cpl J_ (Applicant) did treat with contempt and was disrespectful in language to SGT B. R. T_ who had previously identified himself as a Sergeant.
Violation of UCMJ Article 128: Assault.  On or about 8 November 1994 at approximately 2345 you (Applicant) did assault SGT B. R. T_ by using unwanted bodily contact and force to restrain his movements.
	Award:  Forfeiture of $250 per month for 2 months, restriction and extra duty for 45 days, reduction to E-3.  Reduction to E-3 suspended for 6 months at which time will be remitted without further action.  Not appealed.

941222:	Reduction in pay grade E-2 awarded at NJP on 941123 vacated due to continued misconduct.

941222:	US Naval Hospital, Okinawa, Japan: Applicant transported via ambulance after being punched in the head by friend.  Applicant intoxicated.  Applicant instructed to follow up with command SAACO.

941229:	Squadron NJP for violation of UCMJ, Article 134: Breaking Restriction.  Specifically on or about 21 Dec 1994 at 2200 you (Applicant) did violate restriction orders by leaving Bks. 417 and MCAS Futenma, without prior permission.
Violation of UCMJ Article 134: Drunkenness.  Specifically on or about 22 Dec 1994 at 0730 you (Applicant) were, as a result of wrongful previous overindulgence in intoxicating liquor, incapacitated for the performance of your (Applicant’s) duties.
	Award:  Forfeiture of $466 per month for 1 month, extra duty for 30 days, reduction to E-2.  Not appealed.

950130:	To pretrial confinement.

950223:	Charges referred to Special Court-Martial.
	Charge I: violation of the UCMJ, Article 91: In that Private First Class P_ J_, U.S. Marine Corps, did, on board Marine Corp Air Station Futenma, Okinawa, Japan, on or about 30 January 1995 strike Staff Sergeant M_ P. W_, U.S. Marine Corps, a staff noncommissioned officer, then known to the said Private First Class J_ to be a staff noncommissioned officer who was then in the execution of his office, by kicking him on the leg with his, the said Private First Class J_’ foot.
Charge II: violation of the UCMJ, Article 128: (4 Specifications), Specification 1: In that Private First Class P_ J_, U.S. Marine Corps, did, at Okinawa, Japan on or about 30 January 1995, unlawfully strike Lance Corporal D_ E. M_, U.S. Marine Corps, in the face with his hand; Specification 2: In that Private First Class P_ J_, U.S. Marine Corps, did, at Okinawa, Japan on or about 30 January 1995, assault Lance Corporal D_ E. M_, U.S. Marine Corps, who was then and was then know by the accused to be a person then having and in the execution of military police law enforcement duties, by striking him in the face with his hand; Specification 3: In that Private First Class P_ J_, U.S. Marine Corps, did, on board Marine Corps Air Station Futenma, Okinawa, Japan, on or about 30 January 1995, unlawfully kick Staff Sergeant M_ P. W_, U.S. Marine Corps, on the leg with his foot; and Specification 4: In that Private First Class P_ J_, U.S. Marine Corps, did, at Okinawa, Japan on or about 30 January 1995, assault Staff Sergeant M_ P. W_, U.S. Marine Corps, who was then and was then known by the accused to be a staff noncommissioned officer of the U.S. Marine Corps, by kicking the said Staff Sergeant W_ on the leg with his foot.
Charge III: violation of the UCMJ, Article 134: In that Private First Class P_ J_, U.S. Marine Corps, was on Marine Corp Air Station Futenma, Okinawa, Japan, on or about 30 January 1995, drunk and disorderly which was of a nature to bring discredit upon the armed forces.

950224:	Applicant, having consulted with counsel certified under UCMJ Art 27b, requested discharge for the good of the service to escape trial by court- martial.  The Applicant admitted guilt to the following violations of the UCMJ, Article 91, Article 128 (4 Specifications), and Article 134.  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 entirely satisfied with counsel’s advice.

950316:	Commanding Officer, Marine Aircraft Group 36, 1st Marine Aircraft Wing, forwarded the Applicant’s request for separation in lieu of trial by court-martial to Commanding General, 1st Marine Aircraft Wing, recommending approval with service characterization as under other than honorable conditions.

950324:	SJA recommended approval of the Applicant’s request for separation in lieu of trial by court-martial.

950324:	GCMCA, Commanding General, 1st Marine Aircraft Wing, informed the Commandant of the Marine Corps (MMRB), that the Applicant was directed discharged with a under other than honorable conditions by reason of separation in lieu of trial by court-martial.

950329:	Released from pretrial confinement.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19950428 in lieu of trial by court-martial (A) with a service characterization of under other than honorable conditions.  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 (B and C).  The Board presumed regularity in the conduct of governmental affairs (D).

The Applicant contends that his discharge was improper because he was not offered alcohol rehabilitation.  The Applicant’s medical records show that on 19941222 he was transported to the U.S. Naval Hospital for treatment of a laceration to his head.  The Applicant was determined to be intoxicated and was instructed by the medical officer to report to the command SAACO.  In reviewing the records, the Board found no evidence that the Applicant met with the SAACO for an evaluation.  Likewise, there is no documentary evidence of any subsequent treatment incident to a visit with the SAACO.  In the absence of such documentation, the Board presumed regularity in the conduct of governmental affairs.  That is, the Board presumed that the Applicant did not visit SAACO as instructed and therefore was not evaluated for treatment.  When this occurs, the Applicant bears the burden of overcoming this presumption of regularity by presenting substantial and credible contradictory evidence.  The Applicant did not provide any documentary evidence to challenge propriety in this regard.  Therefore, relief on this basis is denied.

The Applicant implies that his discharge was improper because he did not go to trial for his misconduct.  The Board reminds the Applicant that he requested separation in lieu of trial in order to escape trial by a Special Court-Martial.  During that process, the Applicant was afforded counsel and had the opportunity to view the evidence relating to the offenses for which he was charged.  The Applicant elected to proceed with his voluntary request for separation with the understanding that he would receive a discharge under other than honorable conditions.  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 or inequity after reviewing the Applicant’s case.  Relief on this basis is denied.

The Applicant suggests that his characterization of discharge was inequitable because the Marine Corps breached his enlistment contract.  The Applicant contends that he was guaranteed a 3-year West Coast assignment but was sent to Okinawa, Japan after only a 2-year assignment to the West Coast.  The Quality Enlistment Program, signed by the Applicant on 19901126, holds that the Marine Corps may assign the Applicant overseas sometime during his enlistment.  There is no documentation in the records that guarantees the Applicant a 3-year assignment to the West Coast.  It is noted that the Applicant did not provide any credible evidence to support this claim.  Even so, the Board concluded that even if the Applicant could show that the Marine Corps breached a guarantee, such action does not provide a justification or a defense for the Applicant’s own misconduct.  Relief denied

The Applicant informs the NDRB that since his discharge he has attended the Alcoholic Anonymous 12-Step Program and has not had a drink in over eight years.  He further informs the Board that he has never been in trouble with law enforcement since discharge.  While 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 Marine Corps, the Board is authorized 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.  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, verifiable employment records, documented community service, certification of non-involvement with civil authorities, and credible evidence of a substance free lifestyle are examples of documentation that should have been provided to receive consideration for relief based on post-service conduct.  At this time, the Board found that the Applicant’s statements concerning post-service conduct, without documented evidence, do not mitigate the offense for which he was discharged.  No relief is granted on this basis.

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 documentation to support any claims of post-service accomplishments or any other evidence related to his discharge 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 P1900.16D), effective 
27 Jun 89 until 17 Aug 95.

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

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

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.  

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