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




ex-LCpl, USMC
Docket No. MD03-00849

Applicant’s Request

The application for discharge review was received on 20030409. The Applicant requests the characterization of service received at the time of discharge be changed to honorable or entry level separation or uncharacterized and the reason for the discharge be changed to SECRETARY AUTHORITY. The Applicant requests a personal appearance hearing before the board in the Washington National Capital Region. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040312. 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 and narrative reason 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.

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PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1. “To Whom It May Concern:

On September 28, 2001, at approximately 1430, 1 was informed by First Sergeant P_ that several allegations had surfaced concerning platoon 2082. Prior to the questioning, First Sergeant P_ advised me of my rights and asked if I wanted to speak to a lawyer prior to continuing with the interview. I stated that I understood my rights and that I did not wish to speak with a lawyer not knowing that the consequence of my allegations will end my career as a Marine. I truly feel that the allegations were perceived more severed than what they were. I feel that by me saying the truth was the best thing to do but I do wish that I would have been more policallv correct with the response that I gave the First Sergeant. In drill instructor school I was not at the top of the class as far as academics were concern but I did try my best in every thing that I did and I was not about to give up. Once I graduated from drill instructor school I was very motivated to teach and pass on the knowledge that I was given. Before reporting to platoon 2082 I had to report for Marine Corps Martial Arts Program (MCMAP) green belt instructor course. Once I graduated from MCMAP course I check in with the platoon. I was very intense and very motivated to begin training recruits. I check in training day 30, that was the first day of grass week. From the moment I reported in I notice that the platoon was lacking motivation and discipline. I gave it all I had and all I wanted is to make is a qualified Marine. I was in with the platoon for four weeks and I truly feel that I was not given the opportunity to correct my deficiencies.

When I was relived of my duties as a drill instructor I was placed In S-4 and I was not about to let my mistakes affect my positive attitude. I decided to take the courses for Formal School Instructor; Range Coach Course as well as advance to the brown belt stage of the MCMAP program in my own time. I knew I had to work hard and improve in a lot of areas while keeping things in perspective if I wanted to maintain a Marine.

I don’t regret any of my life’s experience because if I didn’t fall I wouldn’t be able to rise again. I was in the Marine Corps for five years and nine months and in only four week’s as a drill instructor in platoon 2082 that was all thrown all away. I apologize if my actions had in any way gave a bad name to the Marine Corps, but I never thought that a push or a shove will be perceive as a punch or a smack to the face. Some times I wish if I can go back and correct my deficiencies but I can’t and all I can do is ask for forgiveness and hopefully I can move on and put this all behind me.

I have several statements from my former staff non commission officers regarding my character. I’m referring from what First Sergeant stated in my character statement. Stating that: even thought that I had forfeiture the privilege of serving as a drill instructor, he believes that I could function as a drill instructor following my legal matters and that he believes that there would he no continuance of past conduct.

The reason that I agreed to the separation in lieu trial was because my lawyer told me that it will be in my best interest to get out and find a new career because I was still young and I can bounce from this. Since my separation from the Marine Corps I have obtained a job and I have put all the knowledge and discipline that I have obtained in the Marine Corps. I’m currently working for Rose Associates in a residential condominium as a door man/ concierge in New York City. I have taken different courses pertaining to this line of work. I have also been tentatively been selected for the border patrol agency. I am striving to be a better citizen and hopefully you can reconsider my appeal to my discharge. Before I was discharged I was a highly qualified sergeant and I have performed to the best of my ability and completed all the requirements of being a sergeant in the United States Marine Corps. I hope that my service record can over shadow the few mistakes that I have done in my short career as a Marine.

Sincerely and always faithful,

H_ C_ (Applicant)”

Documentation

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

Statement of character, dated January 28, 2002
Statement of character, dated January 23, 2002
Statement of character, dated January 25, 2002
Statement of character, dated January 30, 2002
Job/character reference, dated March 7, 2003

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PART II - SUMMARY OF SERVICE

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

         Inactive: USMCR(J)                951026 - 960603  COG
         Active: USMC              960604 - 991110  HON

Period of Service Under Review :

Date of Enlistment: 991111               Date of Discharge: 020311

Length of Service (years, months, days):

         Active: 02 04 01
         Inactive: None

Age at Entry: 22                          Years Contracted: 4

Education Level: 11 GED                    AFQT: 32

Highest Rank: Sgt

Final Enlisted Performance Evaluation Averages : Enlisted performance reports were available to the Board for review.

Military Decorations: None

Unit/Campaign/Service Awards: HSM, AFEM, SSDR with 1 Star, GCM, MUC, JMUA, Certificate of Commendation (2)

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 :

011228:  Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 92 (2 specs): Specification 1: In that Sergeant H_ C_ (Applicant), U.S. Marine Corps, Second Recruit Training Battalion, Recruit Training Regiment, Marine Corps Recruit Depot, Parris Island, South Carolina, did, on divers occasions, on board Marine Corps Recruit Depot, Parris Island, South Carolina, between on or about 20 August 2001 and 28 September 2001, violate a lawful general order, to wit: paragraph 2003.2j, of Depot Order P1513.1F with change one, two, and three, dated 25 May 2000, by wrongfully engaging in forbidden physical contact with Platoon 2082 recruits. Specification 2: in that Sergeant H_ C_ (Applicant), U.S. Marine Corps, Second Recruit Training Battalion, Recruit Training Regiment, Marine Corps Recruit Depot, Parris Island, South Carolina, did on divers occasions, on board Marine Corps Recruit Depot, Parris Island, South Carolina, between on or about 20 August 2001 and 28 September 2001, violate a lawful general order, to wit: paragraph 2003.2k, Depot Order P1513.1F with change one, two, and three, dated 25 May 2000, by wrongfully causing Platoon 2082 recruits to suffer, and be exposed to, cruel, abusive, and humiliating activities, Article 93 (4 specs): Specification 1: In that Sergeant H_ C_ (Applicant), U.S. Marine Corps, Second Recruit Training Battalion, Recruit Training Regiment, Marine Corps Recruit Depot, Parris Island, South Carolina, on board Marine Corps Recruit Depot, Parris Island, South Carolina, during on or about 20 August 2001 and 28 September 2001, did maltreat Private D_ H_ H_, U.S. Marine Corps, a person subject to his orders, by ordering Private H_ to brush his teeth with a dirty scuzz brush. Specification 2: In that Sergeant H _ C_ (Applicant), U.S. Marine Corps, Second Recruit Training Battalion, Recruit Training Regiment, Marine Corps Recruit Depot, Parris Island, South Carolina _, on board Marine Corps Recruit Depot, Parris Island, South Carolina, during on or about 20 August 2001 and 28 September 2001, did maltreat Private J_ J_ M_, Jr., U.S. Marine Corps, a person subject to his orders, by placing a dirt ball in Private M_’s mouth and pouring water down the throat of Private M_ in order for the said Private M_ to swallow the dirt ball. Specification 3: In that Sergeant H_ C_ (Applicant), U.S. Marine Corps, Second Recruit Training Battalion, Recruit Training Regiment, Marine Corps Recruit Depot, Parris Island, South Carolina, on board Marine Corps Recruit Depot, Parris Island, South Carolina, during on or about 20 August 2001 and 28 September 2001, did maltreat Private K_ G _ R_, U.S. Marine Corps, a person subject to his orders, by ordering the said Private R_ to pick up and then eat a handful of dirt and mud. Specification 4: In that Sergeant H_ C_ (Applicant), U.S. Marine Corps, Second Recruit Training Battalion, Recruit Training Regiment, Marine Corps Recruit Depot, Parris Island, South Carolina, on board Marine Corps Recruit Depot, Parris Island, South Carolina, during on or about 20 August 2001 and 28 September 2001, did maltreat Private J_ J_ R_, U.S. Marine Corps, a person subject to his orders, by ordering the said Private R_ to pick up and eat an unknown object off the floor, Article 128 (9 specs): Specification 1: In that Sergeant H_ C_ (Applicant), U.S. Marine Corps, Second Recruit Training Battalion, Recruit Training Regiment, Marine Corps Recruit Depot, Parris Island, South Carolina, did, on board Marine Corps Recruit Depot, Parris Island, South Carolina, during on or about 20 August 2001 and 28 September 2001, unlawfully strike Private R_ N_ H_, U.S. Marine Corps, in the face with a closed fist, Specification 2: In that Sergeant H_ C_ (Applicant), U.S. Marine Corps, Second Recruit Training Battalion, Recruit Training Regiment, Marine Corps Recruit Depot, Parris Island, South Carolina, did, on board Marine Corps Recruit Depot, Parris Island, South Carolina, during, on or about 20 August 2001 and 28 September 2001, unlawfully strike Private D_ J_ P_, U.S. Marine Corps, in the face with a closed fist, Specification 3: In that Sergeant H_ C_ (Applicant), U.S. Marine Corps, Second Recruit Training Battalion, Recruit Training Regiment, Marine Corps Recruit Depot, Parris Island, South Carolina _, did, on board Marine Corps Recruit Depot, Parris Island, South Carolina, on divers occasions during on or about 20 August 2001 and 28 September 2001, unlawfully strike Private D_ J_ P_, U.S. Marine Corps, on the body with a closed fist, Specification 4: In that Sergeant H_ C_ (Applicant), U.S. Marine Corps, Second Recruit Training Battalion, Recruit Training Regiment, Marine Corps Recruit Depot, Parris Island, South Carolina, did, on board Marine Corps Recruit Depot, Parris Island, South Carolina, during on or about 20 August 2001 and 28 September 2001, unlawfully strike Private T_ L_ W_, U.S. Marine Corps, on the body with a closed fist, Specification 5: In that Sergeant H_ C_ (Applicant), U.S. Marine Corps, Second Recruit Training Battalion, Recruit Training Regiment, Marine Corps Recruit Depot, Parris Island, South Carolina, did, on board Marine Corps Recruit Depot, Parris Island, South Carolina, during on or about: 20 August 2001 and 28 September 2001, unlawfully strike Private S_ J_ R_, U.S. Marine Corps, on the body with a closed fist, Specification 6: In that Sergeant H_ C_ (Applicant), U.S. Marine Corps, Second Recruit Training Battalion, Recruit Training Regiment, Marine Corps Recruit Depot, Parris Island, South Carolina, did, on board Marine Corps Recruit Depot, Parris Island, South Carolina, during on or about 20 August 2001 and 28 September 2001, unlawfully strike Private P_ K_ N_ , U.S. Marine Corps, in the face with a closed fist, Specification 7: In that Sergeant H_ C_ (Applicant), U.S. Marine Corps, Second Recruit Training Battalion, Recruit Training Regiment, Marine Corps Recruit Depot, Parris Island, South Carolina _, did, on board Marine Corps Recruit Depot, Parris Island, South Carolina, during on or about 20 August 2001 and 28 September 2001, unlawfully strike Private M_ S_ S_, U.S. Marine Corps, in the face with the hand of the said Sgt C_ (Applicant), Specification 8: In that Sergeant H_ C_ (Applicant), U.S. Marine Corps, Second Recruit Training Battalion, Recruit Training Regiment, Marine Corps Recruit Depot, Parris Island, South Carolina, did, on board Marine Corps Recruit Depot, Parris Island, South Carolina, during on or about 20 August 2001 and 28 September 2001, unlawfully strike Private W_ M_ A_, U.S. Marine Corps, on the body with the foot of the said Sergeant C_ (Applicant), Specification 9: In that Sergeant H_ C_ (Applicant), U.S. Marine Corps, Second Recruit Training Battalion, Recruit Training Regiment, Marine Corps Recruit Depot, Parris Island, South Carolina, did, on board Marine Corps Recruit Depot, Parris Island, South Carolina, during on or about 20 August 2001 and 28 September 2001, unlawfully strike Private J_ R_ B_, U.S. Marine Corps, on the body with a closed fist arid strike the said Private B_ in the face with the hand of the said Sergeant C_ (Applicant).

020206:  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 the following violations of the UCMJ, Article 92 (2 specs), Article 93 (4 specs), Article 128 (9 specs).

020311:  DD Form 214: Applicant discharged under other than honorable conditions in lieu of trial by court martial, authority: MARCORSEPMAN Par. 6419.

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PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020311 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 20020206, the Applicant requested discharge for the good of the service to escape trial by court-martial. In the request the Applicant certified a complete understanding of the negative consequences of his actions and that characterization of service would be under other than honorable conditions. No other narrative reason more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation. 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 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 occurred 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. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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. 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, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that may be provided to receive consideration for relief, based on post-service conduct. The Applicant’s evidence of post-service conduct was found not to mitigate the offenses for which he was discharged. 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 92, disobey a lawful order; Article 93, cruelty; and Article 128, assault.

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.

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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