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USMC | DRB | 2006_Marine | MD0600178
Original file (MD0600178.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. MD06-00178

Applicant’s Request
The application for discharge review was received on 20051101 . 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.
Decision

A documentary discharge review was conducted in Washington, D.C. on 20060915 . 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 attached document/letter to the Board:
“ From:    O_ F. P_ XXX-XX-XXXX
To:      Naval Counsel of Personnel Board.
Subject:         Review of my Administrative Discharge Under Other Than Honorable Conditions.
I am writing this letter in attempting that the review board will review my records and the information provided in these documents and award me with an Honorable discharge or upgrade me to one that is under Honorable conditions.
In the past nearly two years I have managed to keep one job which I am presently still employed at, I have been attending a local community college since January of 2004, my marriage to my wife T_ P_ is still strong as we are expecting our second child Nov 28 of this year just a few days after Thanksgiving. I purchased a home august of last year. I have not had a single traffic ticket just to explain my demeanor. Although my wife is a special Ed elementary school Teacher and I work as a personal Trainer in Bally Total fitness full time and have the help of the GI bill in paying for my school we are finding it hard to make ends meet. I also do photography on the side with a local photographer. A Few months ago the Miami Dade Fire departments began hiring for a large amount of fire fighters that the growing city badly needs. I went ahead and filled out an application for this position. With disability status that the VA has awarded me I would receive five points and with an honorable discharge I would receive five additional points. However, being that I received an other than Honorable Discharge I receive no points. Although I am receiving no points which are usually given to Veterans in order to facilitate their ability in transitioning into the civilian world I am still going through the hiring process in an attempt that raw talent and my strong physical abilities will give me a fighting chance.
Although it has been almost two years since my discharge and except for dealing with the VA I have mostly kept the thinking about why my once promising Marine Corps career ended so abruptly to a minimum, I believe a lot is clear to me now. At the time of the incident I was stumbling drunk this impairment caused me to allow my self to let something that I was not in control of to take place. Still today I have mixed nightmares of what could have taken place. The one thing that sticks out the most is when Lcpl S_ and I started fighting he would keep yelling at me I can not be this way my and something towards his parent being proud of him and that after having killed his little brother with his fathers hand gun he could not be this way. What do I make of all of this I ask myself? I still don’t know? May he and the girl he killed that night in that fatal motorcycle accident rest in peace!
If the circumstances of his accident would have been different I would probably still be serving my country maybe back in Iraq. Well here I am with a wonderful home a beautiful wife, a two years old daughter and baby boy on the way. God has blessed my family with good health. I guess one might look at my life and say what has he got to complain about and I don’t but there is one thing that lays heavy in my heart and that is being discharged from the Marine Corps the way that I was discharged. I was put out on the street with no place to live, a two month old baby, my wife and myself with no jobs and myself carrying the burdens of war and this all at once. We immediately moved in with her parents and asked the government for assistance. With in a month I had a job
 and was enrolled In Miami Dade College. With in two months my wife got job and we were of welfare. In the documents that I have provided dose closest to me during the time of the incident spell out who Staff Sergeant P_ O_ is. Although my DD214 form says Lance Corporal P_ it might as well say recruit or private because that is the action that the Marine Corps took on my behalf that caused the most tears. I know that that can not be changed but I know the salt that came out of my pores in the line of duty while I served my country as an enlisted man but I ask you to change my discharge so that I may be able to receive the benefits that other disabled Veterans such as my self are receiving. “An Honorable Discharge”.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Portions of Applicant’s Package requesting OTH in Lieu of Trial ( 11 pgs)
 Department of Veterans Affairs Identification Card
Lifeguard Training and First Aid Certificate from American Red Cross
Bally Total Fitness Certificate
Letter from Applicant
Photographs (6)
 Service Related Documents (128 pgs)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19920129 – 19921111               COG
         Active: USMC              19921112 – 19961029               HON
         Active: USMC              19961030 – 20000531               HON

Period of Service Under Review :
Date of Enlistment: 20000601              Date of Discharge: 20031119

Length of Service (years, months, days):

 Active: 0 3 0 5 18
         Inactive: None

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

Age at Entry: 27

Years Contracted: 4

Education Level: 12                                 AFQT: 45

Highest Rank: SSgt                                   MOS: 8152

Final Enlisted Performance Evaluation Averages (number of marks): Fitness reports were available to the Board for review.
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): President Unit Citation, Combat Action Ribbon (2), Marine Corps Good Conduct Medal (3), Navy and Marine Corps Achievement Medal (2), Sea Service Deployment Ribbon (3), National Defense Service Medal (2), Southwest Asia Service Medal, Meritorious Unit Commendation, Joint Meritorious Unit Award, Certificate of Commendation, Meritorious Mast (4) , Certificate of Appreciation (2), Letter of Appreciation (2) .


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 :

000 601 :  Reenlisted this date for a term of 4 years.
0 30903 :  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 honorable conditions. The Applicant admitted guilt to all charges and specifications listed therein except I plead guilty to the lesser included offense of Indecent Acts of specification 1 of Charge I . [ Extracted f rom documents provided by the Applicant.]

031031 :  SJA review determined the case sufficient in law and fact.
031103 :  GCMCA, Commanding General, 2d Marine Division, II Marine Expeditionary Force approved the Applicant's discharge under other than honorable conditions by reason of in lieu of trial by court martia l .

Service Record contains a partial Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20031119 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 available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D). The Board presumed regularity in the conduct of governmental affairs (E).

On 030903, the Applicant 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 was guilty of all but one of the offenses. To that offense he admitted guilt to the lesser included offense of Indecent Acts a violation of Article 134 of the UCMJ. He further certified a complete understanding of the negative consequences of his actions and that characterization of service could 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 Applicant also requested relief based on post service conduct. 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. 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 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. At this time, the Applicant has not provided sufficient documentation for the Board to consider an upgrade. Relief denied.

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 additional evidence related to this 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 P1900.16F), effective
01 September 2001 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 134 (Indecent Acts ) .

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 .

E. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs .


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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