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USMC | DRB | 2005_Marine | MD0500921
Original file (MD0500921.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD05-00921

Applicant’s Request
The application for discharge review was received on 20050503. 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 designated a representative from Veterans Services, Naples FL on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20050831. 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 and reason for 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:

Item 6. ISSUES:
“I am requesting that my discharge be upgraded to either Honorable or Under Honorable conditions.”

Block 15. CONTINUATION OF ITEM 6, ISSUES:
“I did file a previous request but the wrong form was used (DD 149)”

Item 8. SUPPORTING DOCUMENTS:
 “I truly believe that I was unfairly treated and improperly advised.”

Item 15. CONTINUATION OF ITEM 8, SUPPORTING DOCUMENTS:
“No hard evidence excited all it was hearsay, no trial was given, my legal advisor gave me three options, stay in get out or to be relocated to another base.”

Item 16. REMARKS:
“Please be aware that I was a young and naïve 20 year old enlisted man, not knowing that this type of discharge was going to affect my life (in the long term).”


 Documentation
Only the service record book and medical record 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)    19970124 – 19971229               COG
                  Active: None

 Period of Service Under Review :
Date of Enlistment: 19971230             Date of Discharge: 19990106

 Length of Service (years, months, days):

 Active: 01 00 07 (Does not exclude lost time.)
          Inactive: None

 Time Lost During This Period (days):

         Unauthorized absence: 11 days
         Confinement:              30 days

 Age at Entry: 19

Years Contracted: 4

Education Level: 12                                 AFQT: 38

 Highest Rank: PFC                                   MOS: 3531

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.2 (3)              Conduct: 4.3 (3)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized (as stated on the DD Form 214): Rifle Marksman Badge


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 :

980628:  Joined Marine Wing Headquarters Squadron 1, 1st Marine Aircraft Wing, Okinawa, Japan, for duty.

980928:  To UA (AWOL) at 0731 on 980928.

981009:  From UA (AWOL) at 1300 on 981009. Surrendered to I-I Staff Tampa, FL.

981020:  To UA (AWOL) at 1130 on 981020.

981021:  From UA (AWOL) at 0745 on 981021. Surrendered to his unit.

981021:  Retention Warning: Counseled concerning deficiencies in performance and conduct (not following orders and directions given, both written and verbal; violation of Article 86, UA from 980928 to 981008; UA from 1130, 981020 until 0745, 981021; suspected violation of Article 134, adultery; and responsibility to provide adequate financial support to his dependents). Corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

981021:  To pretrial confinement.

981102:  Charges preferred to Special Court-Martial:
 Charge I: violation of the UCMJ, Article 86:
Specification: In that PFC J_ A. P_ (Applicant) U.S. Marine Corps, Marine Wing Headquarters Squadron 1, 1st Marine Aircraft Wing, on active duty, did, on or about 28 September 1998, without authority, absent himself from his unit to with: 4th Assault Amphibian Battalion, 4th Marine Division, located at Marine Corps Training Center, Tampa, Florida, and did remain so absent until on or about 9 October 1998.
Charge II: violation of the UCMJ, Article 134:
Specification: In that PFC J_ A. P_ (Applicant), U.S. Marine Corps, Marine Wing Headquarters Squadron 1, 1st Marine Aircraft Wing, on active duty, a married man did, at Okinawa, Japan, between on or about July 1998 and October 1998, on diverse occasions wrongfully have sexual intercourse with Airman First Class A. M. J_, U.S. Air Force, a woman not his wife.

 981113:  Applicant consulted with counsel, certified in accordance with Article 27b, UCMJ, and requested Separation In Lieu of Trial by Court-Martial with a service characterization of general under honorable conditions for the good of the service. Prior to requesting separation, the Applicant read, understood, and had UCMJ Article 31 explained to him. Applicant stated that he was fully satisfied with counsel; understood the elements of the offenses for which he was charged; and had the opportunity to view the evidence relating to the offenses. The Applicant admitted guilt to violation of UCMJ Article 86 Unauthorized absence and violation of UCMJ Article 134 Adultery, offenses for which he was charged. Applicant understood that the characterization of service may be under other than honorable conditions and the negative consequences of such a discharge.
981120:  From pretrial confinement.

981125:  Commanding Officer, Marine Wing Headquarters Squadron 1, 1st Marine Aircraft Wing, Okinawa, Japan endorsed Applicant’s request and recommended to Commanding General, 1st Marine Aircraft Wing, the Applicant’s discharge under other that honorable conditions by reason of separation in lieu of trial by court-martial. The factual basis for this recommendation was that the Applicant was being processed for Special Courts Martial for adultery and unauthorized absence. Commanding Officer’s comments: “PFC P_’s actions were of such a nature as to bring great discredit upon the Marine Corps and are in diametric opposition to our Corps’ values.”

981202:  GCMCA [Commander, 1st Marine Aircraft Wing] informed the Commandant of the Marine Corps that Applicant was directed discharged with a under other than honorable conditions.

981223:  Staff Judge Advocate, 1st Marine Aircraft Wing review determined the discharge package was sufficient in law and fact.

981229   Applicant transferred to Marine Corps Base, Camp Pendleton, CA for administrative separation.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19990106 by reason of separation 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 contends that his discharge was improper because he was unfairly treated, improperly advised, and that he was unaware that this type of discharge was going to affect his life. The Applicant’s record contains a Request For Separation In Lieu Of Trial By Court-Martial signed by him and his counsel on 19981113. This request contains the following:
•         That the Applicant has read, understands, has had UCMJ Article 31 (Compulsory self-incrimination prohibited) explained to him prior to making the request;
•         That the request was based on his commission of offenses in violation of UCMJ (Article 86 Unauthorized absence and Article 134 Adultery), to which he admitted guilt;
•         The he consulted with counsel who was certified in accordance with UCMJ Article 27(b);
•         That the Applicant was entirely satisfied with counsel’s advice;
•         That counsel explained the elements of the offenses;
•         That the Applicant viewed the evidence relating to the offenses;
•         That characterization of service may be under other than honorable conditions;
•         That a service characterization of under other than honorable conditions may deprive the Applicant of virtually all rights as a veteran, and he may expect to encounter substantial prejudice in civilian life.
 The Applicant’s request for separation in lieu of trial by court-martial was appropriately endorsed and forwarded by the Commanding Officer, Marine Wing Headquarters Squadron 1, and subsequently approved by the Separation Authority. What is more, the 1st Marine Aircraft Wing Staff Judge Advocate review determined that the Applicant’s request for separation in lieu of trial by court-martial was sufficient in law and fact. Since the Board could find no evidence of impropriety with the Applicant’s discharge process, relief on this basis is denied.

The Applicant informs the Board that he desires a service characterization upgrade to Honorable or General (Under Honorable Conditions). 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. There is irrefutable evidence that the Applicant’s conduct during his time in the Marine Corps was not honorable. Indeed, the Applicant’s records contain:
•         Retention warning entry on 19981021 for deficiencies in performance and conduct concerning not following orders and directions; violation of Article 86 (Unauthorized absence from 19980928 to 19981008 and from 19981020 to 19981021); suspected violation of Article 134 Adultery; and responsibility to provide adequate financial support to his dependents;
•         Charges preferred to Special Court-Martial on 19981102 for violation of UCMJ Article 86 Unauthorized absence for eleven days and violation of UCMJ Article 134 Adultery.
 The Applicant’s conduct, which forms the primary basis for determining the character of his service, falls well below that required to be characterized under honorable conditions. An upgrade is not warranted; therefore, relief on this basis is denied.

The Applicant further contends that the evidence was hearsay and that he was not afforded a trial. The Board reminds the Applicant that he requested separation in lieu of trial by court-martial. During that process, the Applicant admitted guilt to the offenses for which he was charged and was afforded the opportunity to view the evidence relating to the offenses. T o permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety or inequity after reviewing the Applicant’s case. Relief on this basis is denied.

The following is provided for the edification of the Applicant. 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 NDRB 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. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities. At this time, the Applicant has not provided any post-service documentation for the Board to consider relief on this basis.

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 claims of 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 P1900.16E), 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 134 Adultery.
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

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