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USMC | DRB | 2006_Marine | MD0600717
Original file (MD0600717.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. MD06-00717

Applicant’s Request
The application for discharge review was received on 20060504 . The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions) and the Narrative Reason for Separation be changed to “ Voluntary Separation .” 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 20070209 . 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.
The NDRB did note administrative error(s) on the original DD Form 214. Block 18, Remarks, should read: “CONTINUOUS HONORABLE ACTIVE DUTY FROM 901211 UNTIL 980806 .” The Commandant, Headquarters USMC, Quantico, VA, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated
Post-service equity.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Service 2)
List of Accomplishments
Department of Veterans Affairs Benefit Letter, dtd December 29, 2005
Fax Cover Sheet

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19901129 - 19901210       COG
         Active: USMC     19901211 - 19941201       HON
          Active: USMC      19941202 - 19980806       HON

Period of Service Under Review :
Date of Enlistment: 19980807              Date of Discharge: 20010713

Length of Service (years, months, days):

 Active: 0 2 11 0 7
         Inactive: None

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

Age at Entry: 29

Years Contracted: 4

Education Level: 12                                 AFQT: 52

Highest Rank: SSgt                                   MOS: 1833

Final Enlisted Performance Evaluation Averages (number of marks): Enlisted 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): Rifle Expert Badge (7 th Awd), Pistol Expert Badge (5 th Awd), Sea Service Deployment Ribbon with 2 Stars, Marine Corps Good Conduct Medal with 2 Stars, Humanitarian Service Medal, National Defense Service Medal, Meritorious Unit Commendation, Letter of Appreciation (8), Certificate of Appreciation, Meritorious Mast (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 :

980807 :  Reenlisted this date for a term of 4 years.
000 809 :  Counseling: Advised of deficiencies in performance and conduct ( failure to properly fulfill duties as Ranger Safety Officer ). N ecessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
010426 :  Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 134 : ( 3 specifications) .
Specification 1: Did between about July 2000 and about December 2000, while in the presence of two unidentified males, willfully and wrongfully expose in an indecent manner to public view his genitals.
Specification 2: Did between about July 2000 and about December 2000, wrongfully commit an indecent act with two unidentified males by disrobing in their presence and while nude and under the direction, cooperation and coordination of one or both unidentified males, while being photographed and videotaped, engaged in various nude poses designed to appeal to prurient interest, did, place his hand upon his penis and masturbate until ejaculation, rub a dildo on his face, stomach, and chest and did insert said dildo into his anus, before said unidentified males, Specification 3: Did between about July 2000 and about December 2000, wrongfully disrobe in the presence of two unidentified males and while nude and under the direction, cooperation and coordination of one or both unidentified males, while being photographed and videotaped, and for the purpose of personal financial gain and knowing that the photographs and videotapes were taken to public distribution, engaged in various nude poses designed to appeal to prurient interest, did, place his hand upon his penis and masturbate until ejaculation, rub a dildo on his face, stomach, and chest and did insert said dildo into his anus, before said unidentified males.

0 10529 :  Applicant, having consulted with counsel certified under UCMJ Art 27 ( b ) , requested separation in lieu of trial by special court-martial. In the request the Applicant noted that his counsel had fully explained the implications of his request, that he understood the elements of the offenses charged, that he understood he could receive an under other than honorable conditions discharge, and that he understood the nature and consequences of an under other than honorable conditions discharge . The Applicant admitted guilt to the specifications under the charge .

0 10613 :  SJA review determined the case sufficient in law and fact.
010614 :  GCMCA, Commanding General approved the request for an administrative separation in lieu of trial by court-martial with the characterization of service as under other than honorable conditions .

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010713 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).

In a signed statement, the Applicant requested administrative separation in lieu of a trial by court-martial. He consulted with counsel and was fully advised of the implications of his request. The Applicant understood that if discharged under other than honorable conditions, it might deprive him of virtually all veterans' benefits based upon his current enlistment, and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received therefrom may have a bearing. The Applicant stated he understood the elements of the offenses with which he was charged. He admitted he was guilty of violating Article 134. The record demonstrates that no impropriety occurred in Applicant’s discharge. In light of the severely service discrediting nature of the Applicant’s offenses, the Board found no inequity in the characterization of service. Relief denied.

The following is provided for the edification of the Applicant. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge. The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities. Normally, to 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 a review of Applicant’s case. 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 Naval service. 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. As of this time, the Applicant has not provided sufficient post-service documentation to consider mitigating the misconduct that resulted in the characterization of 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 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective
18 Aug ust 19 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, Indecent exposure, and Article 134, Indecent acts with another .
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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction . You should read Enclosure (5) of the Instruction 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 Instruction 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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