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USMC | DRB | 2005_Marine | MD0500107
Original file (MD0500107.rtf) Auto-classification: Denied


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


ex-LCpl, USMC
Docket No. MD05-00107

Applicant’s Request
The application for discharge review was received on 20041020. The Applicant requested the characterization of service received at the time of discharge be changed to honorable. The Applicant requested a documentary record review. The Applicant did not list a representative on his DD Form 293. In the acknowledgement letter the applicant was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington, D. C. area. Applicant did not respond.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041222. 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/Conduct triable by courts-martial (request for discharge for the good of the service), authority: MARCORSEPMAN Par. 6419.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


 Issues, as stated
Applicant’s issues, as stated on the application:

 1. “I was an excellent marine and still am to this very day. I feel and my record shows there is no reason I should not had, an honorable discharge
 my court martial ended with me recieving a deduction of pay only. No reduction in rank or anything ELSE. Please review and help restore some of my dignity. Semper FI Thank you

My discharge was a personal conflict with a Gunnery SGT. I was given the SHAFT because I was late for formation a couple of times. It states all of this in my records. Thats the only conclusion you will come up with. Hopefully”
Documentation
The Applicant did not submit any additional documentation for the Board to consider while deliberating his case.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active:                            None                       HON
          Inactive: USMCR (J)               870708 - 870816  COG
Period of Service Under Review :
Date of Enlistment: 870817               Date of Discharge: 900817

 Length of Service (years, months, days):
         Active: 02 11 06 (Accounts for lost time.)
          Inactive: None
Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 49
Highest Rank: LCpl                         MOS: 0311 (Rifleman)

 Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: 4.1 (8)                       Conduct: 4.0 (8)

 Military Decorations: None
Unit/Campaign/Service Awards: SSDR

 Days of Unauthorized Absence: None
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/Conduct triable by courts-martial (request for discharge for the good of the service), authority: MARCORSEPMAN Par. 6419.
Chronological Listing of Significant Service Events :

870817:  Initial enlistment contract documents admission of pre-service marijuana experimentation. Enlistment waiver was granted. Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
900327:  Special Court-Martial.
          Charge I: violation of the UCMJ, Article 125:
         Specification: … commit sodomy …
         Charge II: violation of the UCMJ, Article 128:
         Specification: … assault … by punching and slapping her on the face and scratching and biting her breasts.
         Charge III: violation of the UCMJ, Article 134:
         Specification: … wrongfully have sexual intercourse with … a married woman not his wife.
         Findings: to Charge I and the specification thereunder, guilty. To Charge II and the specification thereunder, not guilty. To Charge II and the specification thereunder, guilty.
         Sentence: Fine of $286.00 per month for 3 months.
         CA 900614: Sentence approved and ordered executed.

900716:  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 he understood the elements of the offenses. He further certified a complete understanding of the negative consequences of his actions and that the characterization of service would be under other honorable conditions. The Applicant admitted guilt to the following violations of the UCMJ, Article 86 (2 specs): … without authority, failed to go at the time prescribed to his appointed place of duty; Article 91: … was disrespectful in language toward a superior staff noncommissioned officer, then known by (the Applicant) to be a superior staff noncommissioned officer in the execution of his office; Article 92 (2 specs): … did violate a lawful general order … by wrongfully having a member of the opposite sex in his BEQ room past the hour of 2200; Article 111: … did, on board Marine Corps Air Station, Kaneohe Bay … operate a motor vehicle while drunk. In particular the Applicant believed he was guilty of violating Article 111 UCMJ, drunk driving.

900724:  SJA review determined the case sufficient in law and fact.

900727:  GCMCA [Commanding General, 1 st Marine Expeditionary Brigade] 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 19900817 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: The record does not support the Applicant’s contention that he “was an excellent marine.” On 900716 , the Applicant requested discharge for the good of the service in order 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 he was guilty of those offenses, particularly the charge related to drunk driving. He further certified a complete understanding of the negative consequences of his actions and that the characterization of service could be under other than honorable conditions. The evidence of record does not demonstrate the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. An upgrade to honorable conditions would be inappropriate. Relief denied.

The NDRB recognizes that serving in the Marine Corps is very challenging.
Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve this great country. It must be noted most Marines serve honorably; thereby, earning honorable discharges. In fairness to those Marines, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due. The Applicant’s discharge characterization accurately reflects his service to our country. His discharge was proper and equitable. Normally, to permit relief, an error or inequity must have existed during the Applicant’s 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 NDRB is authorized to consider outstanding 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, an employment record, documentation of community service, certification of non-involvement with civil authorities and evidence of a substance free lifestyle, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct. The Applicant did not provide the Board with any additional evidence of post-service conduct in order to mitigate the offenses for which he was discharged.

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 P1900.16D), effective 27 Jun 89 until 17 Aug 95.

 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 86, Unauthorized absence, Article 91, Insubordinate conduct toward a noncommissioned officer ; Article 92, Failure to obey an order or regulation ; Article 111, Drunk driving ; Article 125, Sodomy ; Article 134, Wrongfully having sexual intercourse with a married woman not his wife.

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.
D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

E. 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


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