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

FOR OFFICIAL USE ONLY

 ex-LCpl, USMC
Docket No. MD06-00198

Applicant’s Request

The application for discharge review was received on 20051108.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions).  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 20060915.  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 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:

“I am requesting this upgrade because I feel that with my 10 yrs of service and two reenlistments and a combat tour in the Gulf War that a preponderance of my total service should be considered.  I feel that I received poor legal advice in accepting my discharge and rank reduction.  Had I better legal counsel I would have gone to court martial and been able to prove my innocence and would still be serving today.  Thank you for your consideration.”

Applicant’s Remarks:  (Taken from the DD Form 293.):

“Please review my case and with an open mind find within yourselves forgiveness and restore my honor.  So that I my once again walk with pride among my fellow Marines.

Semper-Fi
[signed] J_ W. C_ (Applicant)
Former SGT USMC”

Documentation

Only the service record book and medical records were 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)	19880123 - 19880301	COG
	Active:   USMC	19880302 - 19911127	HON
	Active:   USMC	19911128 - 19950301	HON

Period of Service Under Review:

Date of Enlistment:  19950302		Date of Discharge:  19980320

Length of Service (years, months, days):

Active:    03  00  19  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  none
	Confinement:		  none

Age at Entry:  30

Years Contracted:  4 

Education Level:  12				AFQT:  83

Highest Rank:  SGT				MOS:  3043

Final Enlisted Performance Evaluation Averages (number of marks): Fitness reports were available to the Board for review.

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Meritorious Service Medal (2nd Awd), National Defense Service Medal, Sea Service Deployment Medal (2nd Awd), Southwest Asia Service Medal, Kuwait Liberation Medal (Saudi Arabia), Navy Unit Commendation, Marine Corps Good Conduct Medal, Naval and Marine Corp Achievement Medal, Kuwait Liberation Medal (Kuwait).

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:

950302:	Reenlisted this date for a term of 4 years.

970220:	Extended enlistment for 6 months.

980223:	Charges preferred for violation of the Uniform Code of Military Justice.
Charge I, Article 92:
Specification:  In that Sergeant J_ W. C_ (Applicant), U.S. Marine Corps, on active duty, did, at Helena, Montana, on or about 24 July 1997, violate a lawful general order, to wit: Paragraph 6, MCRD/WRR San Diego Depot Order 1100.4A, dated 21 May 1992, by wrongfully engaging in, encouraging, soliciting, and seeking a nonprofessional personal relationship with Ms J_ M. L_, who at the time of the offense was a member of the Delayed Entry Program, by committing the following acts: grabbing Ms L_’s buttocks without her consent; attempting to kiss Ms L_ on divers occasions, tickling Ms L_ while holding her hands and arms; wrestling with Ms L_; drinking beer in the presence of and offering beer to Ms L_ and Ms E_ K_, both minors; and committing other acts in furtherance of this unprofessional personal relationship.
Charge II, Article 107:
Specification 1: In that Sergeant J_ W. C_ (Applicant), U.S. Marine Corps, on active duty, at Great Falls, Montana, on or about 12 September 1997, with intent to deceive, make to Gunnery Sergeant K. J. T_, an official statement, to wit: “ I only called Ms A_ D_ to congratulate her on joining the U.S. Navy, “or words to that effect, which statement was false in that he called Ms D_, a member of the Delayed Entry Program, for the purpose of asking her to go on a date with him, he asked her to go out on a date with him, and he never congratulated her on joining the U.S Navy.
Specification 2: In that Sergeant J_ W. C_ (Applicant), U.S. Marine Corps, on active duty, at Great Falls, Montana, on or about 31 October 1997, with intent to deceive, sign an official statement, to wit: Sgt C_’s (Applicant) statement dated 31 October 1997, enclosed as enclosure (4) to the JAGMAN investigation of Captain M. J.  M_, which statement was false in that: when he called Ms. D_, he never congratulated her on joining the U.S. Navy and, instead, he asked her to out him on a date; and on 24 July 1997, he did offer Ms L_ and Ms E_ K_ beer, he did drink beer in their presence, Ms L_ and Ms K_ were not drinking beer when they arrived, and he did make “sexual advances” toward Ms L_, and was known by Sgt C_ to be so false.
Charge III, Article 111: 
Specification 1: In that Sergeant J_ W. C_ (Applicant), U.S. Marine Corps, on active duty, at Helena, Montana, on or about 24 July 1997, operate and drive a motor vehicle while drunk.
Specification 2: In that Sergeant J_ W. C_ (Applicant), U.S. Marine Corps, on active duty, at Helena, Montana, on or about 24 July 1997, operate a motor vehicle in a reckless manner, by drinking beer before driving the vehicle, speeding, dangerously passing another vehicle, and failing to stop at a three-way stop sign.
Charge IV, Article 134:
Specification 1: In that Sergeant J_ W. C_ (Applicant), U.S. Marine Corps, on active duty, at Helena, Montana, on or about 24 July 1997, commit an indecent assault upon Ms J_ M. L_, a person not his wife, by repeatedly tickling Ms L_, with the intent to gratify his lust or sexual desires. 
Specification 2: In that Sergeant J_ W. C_ (Applicant), U.S. Marine Corps, on active duty, at Helena, Montana, on or about 24 July 1997, commit an indecent assault upon Ms J_ M. L_, a person not his wife, by attempting to kiss Ms L_ on divers occasions, with the intent to gratify his lust or sexual desires.
Specification 3: In that Sergeant J_ W. C_ (Applicant), U.S. Marine Corps, on active duty, at Helena, Montana, on or about 24 July 1997, commit an indecent assault upon Ms J_ M. L_, a person not his wife, by grabbing Ms L_’s buttocks, with the intent to gratify his lust or sexual desires.

980225:	Charges referred to special court-martial.

980305:	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 voluntarily admitted guilt to violating Article 92 of the UCMJ.  He recognized that an under other than honorable conditions discharge was possible and indicated he was aware of the adverse nature of such a characterization and its consequences.   The Applicant indicated he discussed the request for separation with his counsel and that he was fully satisfied with his advice.  The Applicant indicated he was absolutely convinced that the request was in his best interest and included a request for reduction to Lance Corporal if the request for separation was approved.  

980305:	SJA review determined the case sufficient in law and fact.

980306:	GCMCA, Commanding General, MCRD/WRR San Diego, approved the Applicant's request for discharge and directed his discharge under other than honorable conditions by reason of separation in lieu of trial by court-martial.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19980320 in lieu of trial by court-martial (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).  

The Applicant implies that his discharge is inequitable because of his prior honorable service.  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.  In the Applicant’s request for separation on 19980305, the Applicant admitted guilt to violating Article 92 of the UCMJ for wrongly engaging in, encouraging, soliciting and seeking a nonprofessional relationship with a member of the Delayed Entry Program.  The Applicant’s violation of Article 92 of the UCMJ is the commission of a serious offense, which is punishable by punitive discharge if adjudged as part of the sentence upon conviction at special or general court-martial.  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 Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant implies that his discharge was inequitable because he received poor legal advice.  There is no evidence in the record, and the Applicant did not provide any evidence to support the contention, that the Applicant was not afforded proper legal counsel.  On 19980305, the Applicant admitted guilt to the commission of a serious offense and requested separation in lieu of trial.  In the request, the Applicant notes that he had consulted with counsel and was fully satisfied with the his advice.  The Applicant’s issue is without merit.  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, failure to obey a lawful order/regulation.

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