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USMC | DRB | 2005_Marine | MD0500849
Original file (MD0500849.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-LCpl, USMC
Docket No. MD05-00849

Applicant’s Request
The application for discharge review was received on 20050419. 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. Subsequent to the application, the Applicant obtained representation from the Veterans of Foreign Wars.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20051006. 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 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:

“1. The offense committed was against the UCMJ but was not against Arizona State Law at the time of the offense.

2. The character of SNM and short record should show that SNM was an outstanding Marine and should be granted a second chance. The records do not show the more than 300 character reference letters that were sent in on his behalf when this incident occurred. The records do not show that SNM was to be promoted to the rank of corporal the following day of the offense. The records do not show that at the time of this offense SNM had completed all forms of paperwork to enlist in the MECEP and BOOST programs to become an officer in the MARINE CORPS.”

Additional issues submitted by Applicant’s counsel/representative (Veterans of Foreign Wars):

 “Propriety or Equity Issue(s): The OTH discharge is inequitable in light of the Applicant’s generally honorable service.

Statement: In accordance with 32 CFR § 724, and SECNAVINST 5420.174D, the Veterans of Foreign Wars submits to the Naval Discharge Review Board (NDRB) the above issue and following statement in supplement to the Applicant’s petition.

Mr. M_ (Applicant) is a recipient of the National Defense Service Medal and the Sea Service Deployment Ribbon. His service was exemplary before his transgression relating to the acquisition of the stolen pistol. His proficiency and conduct marks are both 4.4. He was charged with 3 specifications of violating Article 114 and 2 specifications of violating Article 92 of the UCMJ.

Mr. M_ (Applicant) felt that he could not receive a fair trial by court-martial and he therefore voluntarily requested a discharge in lieu of trial. The Other Than Honorable characterization of his discharge is inequitable.

The Veterans of Foreign Wars’ express purpose in providing this statement and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised. To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 USC § 1553, and set forth in 32 CFR § 724 and SECNAVINST 5420.174D.

This case is now respectfully submitted for deliberation and disposition.”
 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Weapons and explosives, Ch. 31, page 409 and 410
Thirty-eight pages from Applicant’s service record
Applicant’s DD Form 214 (2)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19920306 - 19920420      COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 19920421             Date of Discharge: 19940725

 Length of Service (years, months, days):

 Active: 02 03 05
          Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: None
         Confinement:              None

 Age at Entry: 23

 Years Contracted: 4

 Education Level: 14                                 AFQT: 59

 Highest Rank: LCpl                                  MOS: 6046

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.4 (5)                                Conduct: 4.4 (5)

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): National Defense Service Medal, Sea Service Deployment Ribbon, Rifle Expert Badge


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 :

940610:  Charges preferred to Special Court Martial:
 Violation of the UCMJ, Article 92:
Specification1: In that Lance Corporal M_ C. M_, (Applicant) U.S. Marine Corps, MALS-13, MAG-13, 3dMAW, FMFPac, MCAS, Yuma, AZ, while on active duty, having knowledge of a lawful order issued by Commanding Officer, Marine Corps Air Station, Yuma, Arizona, to wit: Station Order 11000.3C, dated 24 August 1992, an order which it was his duty to obey, did, in Room #169, Building #660, MCAS, Yuma, Arizona, on or between 20 March 1994 and 24 March 1994, fail to obey the same by wrongfully possessing a Ruger 9mm pistol in Room #169, Building #660.
Specification 2: In that Lance Corporal M_ C. M_ (Applicant), U.S. Marine Corps, MALS-13, MAG-13, 3dMAW, FMFPac, MCAS, Yuma, AZ, while on active duty, dud, on board Marine Corps Air Station, Yuma, Arizona, on or about 25 March 1994, violate a lawful general order, to wit: paragraph 2 of enclosure (8), MCO 1600.6A, dated 29 November 1982, by wrongfully carrying and transporting a loaded Ruger 9mm pistol, serial number 30300496, in a privately owned vehicle.
Violation of UCMJ, Article 134:
Specification 1: In that Lance Corporal M_ C. M_ (Applicant), U.S. Marine Corps, MALS-13, 3dMAW, FMFPac, MCAS, Yuma, AZ, while on active duty, did, on board MCAS, Yuma, AX, on or about 20 March 1994, wrongfully receive a Ruger 9mm pistol, serial number 30300496, a nylon 9mm pistol holster, and two 9mm magazines, of a total value of about $300.00, the property of T_ G_ which property, as he, the said Lance Corporal M_ C. M_ (Applicant), then knew, had been stolen.
Specification 2: In that Lance Corporal M_ C. M_ (Applicant), U.S. Marine Corps, MALS-13, MAG-13, 3dMAW, FMFPac, MCAS, Yuma, AZ, while on active duty, did, on board MCAS, Yuma, AZ, on or about 25 March 1994, unlawfully carry on or about his person a concealed weapon, to wit: a Ruger 9mm pistol.
Specification 3: In that Lance Corporal M_ C. M_ (Applicant), U.S. Marine Corps, MALS-13, MAG-13, 3dMAW, FMFPac, MCAS, Yuma, AZ, while on active duty, did, on board MCAS, Yuma, AZ, on or about 4 April 1994, in an official statement to a Naval Investigative Service Agent, wrongfully and unlawfully make under unlawful affirmation a false statement in substance as follows: that he, LCpl M_ (Applicant); was purchasing a .44 caliber revolver, serial number SA7615, from Sprauges Sports and RV for himself, which statement he did not then believe to be true.
940614:  Applicant, having consulted with counsel certified under UCMJ Art 27b, requested discharge for the good of the service in lieu of 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 the characterization of service would be under other honorable conditions. The Applicant admitted guilt to violation of the UCMJ, Articles 92 and 134.

NO DATE:         Commanding Officer, Marine Aviation Logistics Squadron 13, via Commanding Officer, Marine Aircraft Group 13, forwarded the Applicant’s request to the Commanding General, 3d Marine Aircraft Wing, recommending approval.

NO DATE:         Commanding Officer, Marine Aircraft Group 13, forwarded the Applicant’s request to the Commanding General, 3d Marine Aircraft Wing, recommending approval.

940616:  SJA review determined the case sufficient in law and fact.

940616:  GCMCA, Commander, 3d Marine Aircraft Wing, directed the Applicant's discharge under other than honorable conditions in lieu of trial by court-martial.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19940725 in lieu of trial by court-martial (A) 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 (B and C).

The Applicant contends that his discharge was inequitable considering his overall quality of service. When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. Characterization of service as under other than honorable conditions 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. The Board reminds the Applicant that, in his request for separation in lieu of trial by court-martial, he admitted guilt to:
•         Violation of UCMJ, Article 92 and two specifications thereunder and
•         Violation of UCMJ, Article 134 and three specifications thereunder.
The Applicant’s conduct, which forms the primary basis for determining the character of his service, falls well below that required for an honorable characterization of service. An upgrade to honorable is not warranted; therefore, on this basis, relief is denied.

The following is provided for the Applicant’s edification. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question, but the Board found no such impropriety or inequity. While 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 Marine Corps, the Board is authorized to consider 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, verifiable employment records, documented community service, and certification of non-involvement with civil authorities are examples of documentation that should have been provided to receive consideration for relief based on post-service conduct. At this time, the Applicant did not provided any post-service documentation for consideration. Relief on this basis is not warranted.

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 post-service accomplishments or any other evidence related to his discharge at that time. 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 P1900.16F), effective
01 September 2001 until Present.

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

C. 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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