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USMC | DRB | 2003_Marine | MD03-00736
Original file (MD03-00736.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD03-00736

Applicant’s Request
The application for discharge review was received on 20030319. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a hearing before a traveling panel closest to Los Angeles, CA. The Applicant did not list any representative on the DD Form 293. The Applicant was advised that a documentary review will be conducted prior to a personal appearance hearing and that all hearings are held in Washington, D.C.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040205. 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. “I am former Lance Corporal I_ M. A_. Last spring, in 2002, I was facing a court-martial for having two military ID Cards, both mines. I was facing trial for writing a false statement to aquirre an extra ID Card just for my own, as a memento when I finished my Military Service. My lawyer was able to get me a Separation in Lieu of Trial, or SILT. Because a conviction of court-martial is a Federal felony. I did not want the risk of being a felon for life, so I took the SILT. I Just want to be a Marine again Sir. I want to serve in combat instead of being a normal civilian. Please give me another chance to serve again. The best years in my life was being a Marine. And to serve in combat. If I have to die, its better to die in the battlefield, not as an disgruntled veteran. Please give me another chance, Sir. Thank you for taking your time reading this review. Thank you again, and Semper Fi.”
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)                970626 - 980301  COG

 Period of Service Under Review :
Date of Enlistment: 980302               Date of Discharge: 020703

 Length of Service (years, months, days):

         Active: 04 04 02
         Inactive: None

 Age at Entry: 17                          Years Contracted: 4

Education Level: 12                        AFQT: 57

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.1 (11)                      Conduct: 4.1 (11)

 Military Decorations: None

 Unit/Campaign/Service Awards: GCM, SSDR, NDSM, 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 :

000816:  Counseled for deficiencies in performance and conduct. [Sleeping in the back of a military police vehicle on 000513. Absent from place of duty on 000514.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

001214:  Mental Health Unit, NH Twentynine Palms, CA diagnosed the Applicant to possess an antisocial and borderline personality disorder (Axis II). Recommended expeditious administrative separation. Applicant represented a continuing risk of harm to self or others due to low impulse control secondary to personality disorder.

010110:  Counseled for deficiencies in performance and conduct. [Absent from place of duty on 010108.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010117:  Counseled for processing for an administrative separation due to a severe personality disorder.

020510:  Charges referred to Special Court-Martial. Violation of UCMJ, Article 107 (2 specs). Spec 1: Did, on or about 28 February 2002, with intent to deceive, sign an official statement, “My Identification Card was lost under the following circumstances: I was on leave 12-27 February when during that period I lost my Identification Card,” which statement was false. Spec 2: Did, on or about 5 November 2001, with intent to deceive, sign an official statement, “My Identification Card was lost under the following circumstances: I was drunk in a bar out in town. I do not remember much afterward,” which statement was false.

020619:  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 than honorable conditions. The Applicant admitted guilt to violation of the UCMJ, Article 107, false official statements.

020625:  SJA review determined the case sufficient in law and fact.

020701:  GCMCA [CG, 1 st MARDIV (Rein)] 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 20020703 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. On 20020619, the Applicant requested discharge for the good of the service to escape trial by court- martial. He certified a complete understanding of the negative consequences of his actions and that characterization of service would 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.

The NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces. Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment. A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.

The Applicant’s discharge characterization accurately reflects his service to his country. Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity is evident during the Applicant’s enlistment. Additionally, 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. Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his 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 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 107: false official statements.
C. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

E. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 “ afls14.jag.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:

                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                  720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023      

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