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

FOR OFFICIAL USE ONLY

 ex-LCpl, USMC
Docket No. MD05-01194

Applicant’s Request

The application for discharge review was received on 20050706.  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 20060224.  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 misconduct due to the commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I had and outstanding Record (PFT, Rifle Range, Fitness Reports) I made one mistake and my entire 6.5 years or more are erased and forgotten.  I touched a young girl on the leg and felt horrible and told the Marine Core what happened.  My Master Gunnery Sgt. wanted me to change my story, but I refused.  I know that I was wrong, but I was not going to lie about what happened.  I was told by my C. O. that my discharge would be under than honorable conditions.  Just sign here on this form saying you will not request to go before a Review Board and this will move faster.  August 8^th 2002, the date of my separation I find out, only by reading my DD214 that Lost 60 days of Leave, Reduced from Sgt. To LCPL., and not a under Honorable conditions, but under other than Honorable conditions.  I only want the benefits that were taken from me.  I want to be able to see the V.A. when I am sick, like any other vetnan.”

Documentation

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

Applicant’s DD Form 214  (Member 4)
Ltr from Westmore and County Adult Probation and Parole, A_ P. U_, Director, dtd 	December 22, 2004

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19941028 – 19951022		COG
	Active:    			19951023 – 19991130		HON

Period of Service Under Review:

Date of Enlistment:  19991201		Date of Discharge:  20020808

Length of Service (years, months, days):

Active:    02 08 08  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  23 

Years Contracted:  4 

Education Level:  12				AFQT:  34

Highest Rank:  Sgt				MOS:  2531

Final Enlisted Performance Evaluation:  Marine Corps Fitness Reports were available for review.

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Marine Corps Good Conduct Medal (2D AWD), Combat Action Ribbon, National Defense Service Medal (2D AWD), KOSOVO Campaign Medal (3D AWD), NATO Medal, Humanitarian Service Medal (2D AWD), Navy Unit Commendation, Joint Meritorious Unit Award, Meritorious Mast, expert Rifle Badge, Marksman Pistol, Badge.

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.6.

Chronological Listing of Significant Service Events:

991201:	Reenlisted this date for a term of 4 years. 

020130:	Counseling:  Advised of deficiencies in performance and conduct (Dangerous/Serious pattern of reckless vehicle related accidents Involving GOV’s, POV’s Rental Vehicles dating from 20011002 to 20020123 while a member Recruiting Substation “Uniontown”, Recruiting Station Pittsburg.  The total damage to Government Vehicle’s has been estimated at $817.88.  The following deficiencies are:  Lack of Maturity, Judgment and conduct unbecoming of a Marine), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.

020710:	Police Criminal Complaint.  On 07/05/02 at or about 2100 hrs., the Actor, T_S.P_ (Applicant), age 25, was at Edinborough Drive playing a board game and while sitting next to S_R_, age 13, placed his left hand on the inner upper thigh of R_’s right leg.  The Actor (Applicant) kept his hand on her leg for a period of forty-five minutes to one hour, during which time the Actor was sexually aroused.  Following the board game, the victim and Actor (Applicant) participated in a game of basketball called “HORSE”.  During the game, the Actor (Applicant) had physical contact with the victim on several occasions.  The Actor (Applicant) would swipe his hand across the victim’s buttocks, which also sexually aroused him.  The Actor (Applicant) admitted to your affiant that the physical contact initiated by himself with the victim sexually aroused him to the point he had an “erection”.  The Actor (Applicant) admitted to later masturbating while thinking about his hands on the victim to the point he had an ejaculation.
020710:	Commonwealth of Pennsylvania Police Criminal Complaint:  Indecent Assault (Count 1):  The Actor, T_ S. P_ (Applicant), on or about, 07/05/02 at 2100 hrs., in the County of Westmoreland, had indecent contact with another person, namely, S_ R_, age 13, no his or her spouse or caused said other person to have indecent contact with him or her, without the consent of said other person, namely, the Actor placed his left hand on the inner upper thigh of the victims right leg while sitting next to her, then while playing basketball placed his hand on her buttocks which sexually aroused the Actor, in violation of Section 3126 (a) (1) of the Pennsylvania Crimes Code Act of December 6, 1972, as amended, 18 Pa. C.S. 3126 (a) (1).
	Indecent Assault (Count 2):  The Actor, T_ S. P_ (Applicant), on or about, 07/05/2002 at 2100 hrs., in the County of Westmoreland, had indecent contact with another person, namely, S_ R_, age 13, not his or her spouse, or caused said other person to have indecent contact with him or her, when the complainant is less than 16 years of age and the Actor is four or more years older than the complainant and the complainant and the Actor are not married to each other, namely, the Actor placed his left hand on the inner upper thigh of the victim’s right leg while sitting next to her, then while playing basketball placed his hand on her buttocks which sexually aroused the Actor, in violation of Section 3126 (a) (s) of the Pennsylvania Crime Code Act of December 6, 1972, as amended, 18 Pa. C.S. 3126 (a) (8).

020711:	Applicant examined at Behavioral Healthcare Clinic.  Patient (Applicant) has some outstanding legal problems.  Patient (Applicant) suffers from work related anxiety in his current command.  Patient (Applicant) has non-work related legal problems, which he has fully shared with his command.  
	Diagnosis:  Normal psychiatric examination.
	GAF: 85
	Fitness for Duty:  At the present time, this patient (Applicant) is considered fully competent to be discharged to his own custody and does not constitute a danger to self or others.  The Patient (Applicant) understands and accepts the treatment plan.  The patient (Applicant) is fit for full range of duty assignments.

020723:	Applicant notified of intended recommendation for discharge by reason of commission of a serious offense with a characterization of service of General (Under Honorable Conditions) and that the least favorable characterization of service that he could receive is under other than honorable conditions.  The factual basis for this recommendation was that SNM was arrested for alleged indecent assault on a 13 year old girl on 10 July 2002 for placing his hand on her upper thigh a number of times and admitted to having two other similar incidences in the past three months with other children.

020724:	Applicant advised of rights and having consulted with counsel, elected to waive all rights.

020725:	Commanding Officer, Recruiting Station Pittsburg, recommended to Commanding General, Eastern Recruiting Region/Marine Corps Recruit Deport, via Commanding Officer, 1^st Marine Corps District, that the Applicant be discharged by reason of commission of a serious offense with a characterization of service of General (Under Honorable Conditions).  The factual basis for this recommendation is the Applicant’s arrest and confession for conducting an indecent assault on a 13 year old girl on 10 July 2002 and for admitting to having two other similar incidences in the past three months with other children.  Commanding Officer’s comments:  “I strongly recommend Sgt P_ (Applicant)’s service in the U.S. Marine Corps be terminated immediately and that he be administratively separated from our Corps and receive a characterization of service of General (Under Honorable Conditions).”

020725:	Commanding Officer, 1^st Marine Corps District recommended to the Commanding General, Eastern Recruiting Region/Marine Corps Recruit Depot, Parris Island, that the Applicant be administratively separated Under Other Than Honorable discharge, by reason of misconduct due to commission of a serious offense.  CO’s comments:  “Based upon Sgt P_ (Applicant) arrest and confession for assault with a minor and after admitting to having two other similar incidences in the past three months, it is evident that his conduct is detrimental to the good order and discipline of the armed forces.  Retaining Sgt P_ (Applicant) on active duty is not in the best interest of this command nor the Marine Corps.  I strongly recommend he be administratively separated from our Corps and that he receive a characterization of service under other than honorable conditions.”

020808:	SJA review determined the case sufficient in law and fact.

020808:	Commander, Marine Corps Recruit Deport/Eastern Recruiting Region, advised the Commandant of the Marine Corps that the Applicant will be discharged under other than honorable conditions by reason of misconduct due to commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020808 by reason of misconduct due to the commission of a serious offense (A and B) 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 (C and D). 

Commission of a serious offense does not require adjudication by nonjudicial, judicial proceedings or civilian conviction; however, the offense must be substantiated by a preponderance of evidence.   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 action.  The Applicant was provided the opportunity to present his case before an administrative board, but waived that right. The Applicant admitted to committing 2 other incidences of misconduct similar to the misconduct for which he was arrested.  The Applicant was notified that his Commanding Officer recommended his administrative separation with a discharge characterization of service of General (Under Honorable Conditions).  The Applicant was also notified that the Commanding General would make the determination of the characterization of service and that the least favorable characterization of service that he could receive was under other than honorable conditions.  Relief denied.

The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.   Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, 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, is considered.  For documentation of his post-service, the Applicant provided a letter from the county probation and parole agency, stating that the Applicant had completed his probation as of 20041221.  The Applicant's efforts need to be more encompassing than those provided.  For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities for the period of time since he completed probation, in order for consideration for clemency based on post-service conduct.  At this time, the Applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in his characterization of discharge.  Therefore, no relief will be granted.

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 additional evidence related to this discharge.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), 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 134, indecent act, liberties with child.

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

D.  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