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


FOR OFFICIAL USE ONLY


ex-Pvt, USMCR
Docket No. MD06-00400

Applicant’s Request

The application for discharge review was received on 20060 1 12 . 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 20061116 . 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 Honorable Conditions (General) by reason of misconduct due to the commission of a serious offense.

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PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application sent to the Board :

“Issue One – My discharge should be upgraded because my unit did not abide by my pre-trial agreement.

Issue Two – My discharge should be upgraded because of my post service conduct evidencing my good moral fiber”

Applicant’s issues, as stated on a document attached to the Application sent to the Board:

“Rider To Application For Upgrade of Discharge

Issue One

I request to upgrade my discharge from a General under Honorable Conditions to an Honorable Discharge based on the justification that my unit did not abide by my pre-trial agreement at my court-martial.

In June of 1992, while on a two week annual training exercise with my Marine Corps reserve unit at 29 Palms, California, I committed several violations pursuant to the UCMJ. In July of 1992, I agreed to plead guilty to certain offenses in return for protection from being discharged from the service (See Exhibit “1”); thereby, allowing me to complete my Marine Corps. contract and receive an Honorable Discharge. After my court-martial proceedings were concluded, I was reduced in pay and grade, confined to the brig, than returned to duty.

In October of 1992, I was informed by my unit, in writing (See Exhibit “2”), that I was being processed for an administrative discharge based on my court-martial conviction. I initially asked for a hearing to dispute these proceedings because they were not in accordance with my pre-trial agreement, but was advised by my counsel I would lose these proceedings and receive an Other than Honorable Discharge; therefore, on the advice of counsel, I waived a hearing as long as I received a discharge under honorable conditions (See Exhibit “3”).

As evidence of what I am saying is correct, attached as Exhibit “4” is a letter from the prosecutor of my court-martial, Capt. P.D. H_, dated November 4, 1992, to the SJA-4th Marine Division, in which Capt. H_ argues against my administrative discharge altogether! It is clear from this letter, my unit did not act in good faith nor abide by the terms of my pre-trial agreement that afforded me protection from a discharge. Furthermore, I was never afforded a right to an appeal so I could have these issues addressed in any court of law and stay in the military until my contract ended.

It is on this basis, that I believe my discharge should be upgraded to an Honorable Discharge because had I not been administratively discharged before my military contracted ended, I would have been eligible for an Honorable Discharge with a better reenlistment code. Our system of American Jurisprudence requires that all parties, even the government, must act in good faith and honor their word because it is the fundamentally fair thing to do.

Issue Two

I request to upgrade my discharge from a General under Honorable Conditions to an Honorable Discharge based on the justification of my post service conduct to the present date.

First, other than this court-martial conviction, I have never been in trouble with the law (See Exhibit “5”) which is proof my court-martial conviction was no indication of my character or the values I believe in. I have led and continue to lead an exemplary life and am proud to inform this tribunal that I am a licensed attorney admitted to practice law in the States of New York and New Jersey, and in the Southern and Eastern Districts of New York (See Exhibit “6”).

As proof of my fitness to practice law, enclosed are affirmations from attorneys L_ S_, J_ F_, L_ S_ and J_ S_ evidencing my fitness to practice law (See Exhibit “7”).

Additionally, in further attestation of my good moral character, are affirmations from T_ Y_, J_ S_, N_ A_ and B_ S_ attesting to my good moral fiber (See Exhibit “8”).

Importantly, are affidavits from my family members E_ P_, I_ P_, V_ P_ and E_ D. P_ evidencing their support and confidence to upgrade my discharge based on my accomplishments evidencing that I am worthy to have my discharge upgraded (See Exhibit “9”).

But most importantly, I am proud to inform this tribunal that based on my positive accomplishments since my court-martial, I have been allowed to enlist into the Army National Guard in the State of Connecticut (See Exhibit “10). It was my goal to personally appear before this tribunal to present my case, but I have been activated for Operation Enduring Freedom and am in the process of deploying to Afghanistan (See Exhibit “11”). Although I am unable to be present at a hearing, I am confident this tribunal will do the right thing.

In conclusion, I respectfully request that my discharge be upgraded from a General Under Honorable Conditions to an Honorable Discharge for the reasons stated herein, that this tribunal upgrade and/or recommend upgrading my re-enlistment code, and for such further, similar and other relief as this tribunal deems appropriate.

Certification: I make the forgoing statements, as part of my claim, with full knowledge of the penalties involved for willfully making a false statement or claim.

Dated: January 6, 2006

[signed]
V_ N. P_(applicant)”


Documentation

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

Applicant’s DD Form 214
Letter to Applic a nt from the National Personnel Records Center, dtd February 9, 2004
Copy of Maximum Sentence Appendix, Special Court Martial, dtd July 17, 1992
Copy of Notification of Separation Proceedings, dtd October 21, 1992
Copy of Staff Judge Advocate Endorsement, dtd March 5, 1993
Copy of Trial Counsel Letter, dtd November 4, 1992 (2 pages)
State of New York Unified Court System, Criminal History Record Search, dtd      September 27, 2005
Appellate Division of the Supreme Court of the State of New York, Applicant’s    admittance to practice as an attorney and counselor at law , dtd September 23, 2003
Supreme Court of New Jersey, Certificate of Good Standing, Admittance to         P ractice , dtd December 4, 2000
Certificate, Southern District of New York, Admittance to Practice, dtd January 2, 2002
Certificate, Eastern District of New York, Admittance to Practice dtd March 16, 2001
Affirmation of Employment, dtd November 16, 2000
Affirmation of Employment, dtd December 12, 2000
Affirmation of Employment, dtd November 17, 2000
Affirmation of Employment, not dated
Affidavit of Good Moral Character, dtd November 30, 2000
Affidavit of Good Moral Character, dtd November 20, 2000
Affidavit of Good Moral Character, dtd December 12, 2000
Affidavit of Good Moral Character, dtd December 12, 2000
Affidavit of E_ P_, dtd August 12, 2003 (3 pages)
Affidavit of I_ P_, dtd August 13, 2003 (3 pages)
Affidavit of V_ P_, August 13, 2003 (3 pages)
Affidavit of E_ D. P_, August 13, 2003 (3 pages)
Enlistment/Reenlistment Document Armed Forces of the United States, dtd October 14,      2004 (2 pages)
Department of the Army, Permanent Orders, dtd October 2, 2005 (5 pages)
Applicant’s Resume

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):
        
         Inactive: None
         Active: None

Period of Service Under Review :

Date of Enlistment: 19890302     Date of Discharge: 19930308

Length of Service (years, months, days):

Active: 00 0 2 28 ( Does not exclude lost time.)
         Inactive: 03 0 9 10

Time Lost During This Period (days):

         Unauthorized absence: 0 day s
         Confinement:              7 2 day s

Age at Entry: 1 9

Years Contracted: 8

Education Level: 1 3                                  AFQT: 61

Highest Rank: LCpl                                   MOS: 0311

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency: 4. 2 ( 9 )                                 Conduct: 4. 2 ( 9 )

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214 ) : Meritorious Unit Commendation, Rifle Sharpshooter Badge.

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Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct-Commission of a serious offense (all other) admin discharge board required but waived, authority: MARCORSEPMAN Par. 6210.6.

Chronological Listing of Significant Service Events :

890302:  Pre-service waiver (DAD) granted

890516 :  Commen ced IADT.

890812 :  Completed IADT .

92061 3 :  Applicant to confinement.

920624:  Applicant from confinement, to duty.

920723 :  S pecial Court-Martial. Conducted on 23 and 24 Jul 92.
         Charge I: Article 81. Plea: Guilty. Finding: Guilty.
         Specification: On 11 or 12 June 1992, conspire with LCpl E. W. D_, USMCR, LCpl J. P_ , USMCR, and LCpl J.A. A_, USMCR, to intentionally inflict grievous bodily harm to LCpl A. A. S_ , USMCR. Plea: *Guilty. Finding: * Guilty. (*Guilty, except the words “in which grievous bodily harm is intentionally inflicted; to wit, a collapsed lung, by grabbing and taping the said Lance Corporal S_ to his rack and ” ; of the excepted words, Not Guilty; of the specification as excepted, Guilty. )
         Charge II: Article 108. Plea: Guilty. Finding: Guilty.
         Specification: On 11 or 12 June 1992, willfully damage a number of cots and light bulbs with the muzzle of his M16A2 service rifle. Plea: **Guilty. Finding: ** Guilty. (**Guilty, except the words “by striking a number of cots and light bulbs with the muzzle of his M-16A2 service rifle”; and substituting therefor e , the words “light bulbs by striking them with his hands, said bulbs being”; of the excepted words, Not Guilty; of the substituted words, Guilty; of the specification as excepted and substituted, Guilty. )
         Charge III: Article 128 . Plea: Guilty. Finding: Guilty.
         Specification: On that 11 or 12 June 1992, commit an assault upon LCpl A.A. S_, USMCR. Plea: ***Guilty. Finding: ***Guilty. (*** Guilty, except the words “commit an assault upon”; and substituting ther e for e , the words, “unlawfully strike”; and except the words, “and did thereby intentionally inflict grievous bodily harm upon him, to wit, a collapsed lung”; of the excepted words, Not Guilty; of the substituting words and of the specification as excepted and substituted, Guilty.)
         Charge IV: Article 134. Plea: Guilty. Finding: Guilty.
         Specification 1: On 11 or 12 July 1992, was drunk and disorderly. Plea: Not Guilty. Finding: Not Guilty.
         Specification 2: On 12 June 1992, wrongfully try to influence the testimony of LCpl D.W. M_, USMCR. Plea: Not Guilty. F inding : Not Guilty.
Specification 3 : On 12 June 1992, make a false statement while under lawful oath. Plea: Guilty. Finding: Guilty.
Specification 4 : On 12 June 1992, make a false statement while under lawful oath. Plea: Not Guilty. Finding: Not Guilty.
         Sentence: Bad Conduct Discharge, confinement for three (3) months, and reduction to Private, pay grade (E-1).
         CA action 930216 : In the special court-martial case of Lance Corporal V_ N. P_ (SSN deleted) U. S. Marine Corps, tried on 23 and 24 July 1992, at Twentynine Palms, California, only so much of the sentence as provides for confinement for three (3) months and reduction to private, pay grade E-1 is approved and ordered executed. The deferment of all unexecuted confinement is herby rescinded effective this date. The accused will be given credit for twelve (12) days spent on pretrial confinement. The Marine Corps Base, Camp Pendleton, California, Brig is designated as the place of confinement.

920724:  Applicant to confinement.

92092 2 :  Applicant from confinement, to duty.

921021 :  Letter of intent to administratively separate under other than honorable conditions for the general basis of misconduct and the specific basis of Commission of a Serious Offense was sent via certified mail, return receipt requested.

921023 :  Applicant signed “ACKNOWLEDGEMENT OF MY RIGHTS TO BE EXRECISED OR W A IVED DURING SEPARATION PROCEEDINGS”, acknowledged receipt of letter of intent to administratively separate, advised of rights and having not c onsult ed with counsel, states that he “wishes to speak to counsel” and elected to appear before an Administrative Discharge Board.

921104:  Letter from Trial Counsel, Capt P. D. H_ , USMC, to SJA, 4 ^th Marine Division.




921111 :  Commanding Officer /Inspector-Instructor, Company G , 2d Battalion, 25 ^th Marines recommended to the Commanding General, Marine Reserve Force (SJA) that the Applicant be discharged by reason of misconduct-commission of a serious offense with a service characterization of under other than ho norable conditions . The factual basis for this recommendation was his conviction by Special Court Martial on 24 July 1992 for violation of the following Articles and Specifications of the Uniform Code of Military Justice (UCMJ): Article 81 (conspiracy); Article 108 (damage military property); Article 128 (assault consummated by battery); Article 134 (false statement) as provided in paragraph 6210.6 of reference (a).

921118:  Letter from Applicant to Commanding General, 4 ^th Marine Division, FMF, USMCR. Subject: Conditional Waive r of Administrative Discharge Board Hearing. Applicant’s comments: “In the First Endorsement of reference (a), I requested a hearing before an Administrative Discharge Board. Upon consultation with counsel, Captain J. M. J_, USMCR, a judge advocate, I will conditionally waive the Administrative Discharge Board per reference (b), if I am awarded a general discharge characterized under honorable conditions.”

921206:  Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of Jan 93 prom period because awaiting convening authorities action of a court martial. Applicant not available for signature.

930228:  Counsel for Respondent, LT R_ II, letter to Commanding General, 4 ^th Marine Division, FMF, USMCR. Subject: Request for Permission to Enter Conditional Waiver of Administrative Discharge Board ICO Private V_ M. P_ (Applicant)(SSN deleted)/0311 USMCR. Counsel’s comments: “In accordance with reference (a), the respondent scheduled to appear before an administrative board on 6 March 1993 respectfully requests permission to waive this board in exchange for a general discharge under honorable conditions. This request is contained in enclosure (1) and has been made after consultation with prior defense counsel, C a pt J. M. J_ . I have personally consulted with LCpl P_ on this matter and feel this request is in the best interest is in his best interest as well as that of the Marine Corps. This opinion is reinforced by enclosure (2), in which Capt P. D. H_, trial counsel in the case, argues against separation all together. ”






930302:  Commanding Officer/Inspector-Instructor Company G , 2d Battalion 25 ^th Marines, 4 ^th Marine Division, FMF, USMCR, letter of first endorsement on LT R_ ‘s II letter dated 28 Feb 03 to Commanding General, Marine Reserve Force. Subject: Request for Permission to Enter Conditional Waiver of Administrative Discharge Board ICO Private V_ M. P_ (Applicant) (SSN deleted)/0311 USMCR. CO’s comments: “Readdressed and forwarded, recommending approval. Due to the seriousness of the offense involved this command’s recommendation to remains per reference (b). ”

930302:  Commanding Officer, 2d Battalion, 25 ^th Marines letter of second endorsement on LT R_ ‘s II letter dated 28 Feb 03. Subject: Request for Permission to Enter Conditional Waiver of Administrative Discharge Board ICO Private V_ M. P_ (Applicant) (SSN deleted)/0311 USMCR. CO, 2/25 comments: “Forwarded recommending disapproval. Due to the seriousness of the offense committed, Private P_ (Applicant) does not rate a general discharge under honorable conditions. This command recommends that the administrative board be convene d .”

930303:  Commanding Officer, 25 ^th Marines letter of third endorsement on LT R_ ’s letter of 28 Feb 93. Subject: Request for Permission to Enter Conditional Waiver of Administrative Discharge Board ICO Private V_ M. P_ (Applicant) (SSN deleted)/0311 USMCR. CO, 25 ^th Marines comments: “Forwarded, concurring in the Battalion’s recommendation to proceed with the administrative dis charge board. ”

930305 :  SJA review determined the case sufficient in law and fact. SJA recommended that the GCMCA accept the conditional waiver and direct the respondent’s separation with a Under Honorable Conditions (General) characterization of service.

930305 :  GCMCA, Commanding General , Marine Reserve Fo r ce, directed the Applicant's discharge with an under honorable conditions (general) by reason of misconduct – commission of a serious offense.

930308:  Letter from the Commanding Officer, Company G, 2d Battalion, 25 ^th Marines , notifying the Applicant that he is discharged as of 2400 on 8 March 1993 by reason of misconduct with a characterization of service of Under Honorable Conditions (General).

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PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19930308 by reason of misconduct due to the commission of a serious offense (A and B) with a service characterization of under honorable conditions (general) . 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 states that his discharge should be upgraded because his unit did not abide by his pretrial agreement. On 199 2 0717 , as the accused in a Special Court-Martial, the Applicant signed a pretrial agreeme nt, wherein he plead guilty to charges and specifications of violating UCMJ Articles 81, 108, 128, and 134. Paragraph (9) of the pretrial agreement states the following:

“I may be processed for an administrative discharge because of the charges and specifications described below, even if part or all of my sentence, including a punitive discharge, is suspended or disapproved pursuant to this agreement. ”

The Maximum Sentence Appendix to the pretrial agreement , signed by the Applicant on 19920717 and incorporated as part of the pretrial agreement, details the maximum sentence to be approved by the convening authority. The Maximum Sentence Appendix includes the following provision:

“1. Punitive Discharge: May be approved as adjudged; however, if awarded, any bad conduct discharge will be suspended for a period of twelve (12) months from the date the convening authority takes his action, at which time, unless sooner vacated, any bad conduct discharge will be remitted without further action. ”

On 19930216, the Covening Authority approved and ordered executed “only so much of the sentence as provides for confinement for three (3) months and reduction to private, pay grade E-1.” The Covening Authority did not approve the bad conduct discharge; therefore, a bad conduct discharge was not awarded. Prior to the Covening Authority Action, the Applicant was notified on 19921023 of the intent to administratively separate him under other than honorable conditions by reason of commission of a serious offense. Initially the Applicant requested to appear before an administrative separation board but on 19921118 the Applicant forwarded a Conditional Waiver of Administrative Discharge Board to the GCMCA, offering to waive his appearance in exchange for a general discharge characterized under honorable conditions. On 19930305, the GCMCA directed the Applicant’s discharge by reason of misconduct - commission of a serious offense with a characterization of service of under honorable conditions (general). In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable . Relief denied.
When the service of a member of the U.S. Marine Corps Reserve has been honest and faithful, it is appropriate to characterize that service as honorable. An under other than honorable conditions or general discharge 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 Applicant’s service was marred by a conviction by special court-martial for violations of Articles 81, 108, 128, and 134 of the UCMJ. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Marine Corps Reserve and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

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. After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not to mitigate the conduct, which precipitated the discharge. 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 6210, Misconduct 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 violatio n of the UCMJ, Articles 81 (Conspiracy), 108 (Damaging, willfully, of a value $500.00 or less), 128 (Assault), and 134 (Drunkenness, Disorderly).

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 .

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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 “ 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