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USMC | DRB | 2006_Marine | MD0600756
Original file (MD0600756.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. MD06-00756

Applicant’s Request
The application for discharge review was received on 20060509 . 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 did not designate a representative on the DD Form 293.
Decision

A documentary discharge review was conducted in Washington, D.C. on 20070215 . 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 24 , Character of Service, should read: “ UNDER OTHER THAN HONORABLE CONDITIONS ” and Block 28, Narrative Reason for Discharge, should read: “IN LIEU OF TRIAL BY COURT-MARTIAL”. The Commandant, Headquarters USMC, Quantico, VA, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

PART I - ISSUES AND DOCUMENTATION


Decisional Issues

Equity – Quality of service

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Service 2)
Four pages from service record (4 pgs)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19930922 - 19940124       COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 19940125              Date of Discharge: 19960410

Length of Service (years, months, days):

 Active: 0 2 0 2 16
         Inactive: None

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

Age at Entry: 18

Years Contracted: 4

Education Level: 12                                 AFQT: 34

Highest Rank: LCpl                                   MOS: 0311

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4 . 5 ( 6 )                       Conduct: 4 . 1 ( 6 )
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Rifle Marksman, National Defense Service Medal, Certificate of Commendation, Meritorious Mast (2), Letter of Appreciation, Overseas Service Ribbon


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 :

950807 :  NJP for violation of UCMJ, Article 128 : Struck PFC L_ in the head with his fist and feet at MCSFDet Souda Bay, Crete, Greece.
         Award: Forfeiture of $ 230. 00 pay per month for 1 month, restriction for 7 days (suspended for 1 month), extra duty for 7 days. Not appealed.
950809:  Counseling: Advised of deficiencies in performance and conduct (alcohol related incident, specifically striking a Marine in his head with his hands and feet which resulted in NJP), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
950815 :  R estriction awarded at NJP on 95080 7 vacated due to continued misconduct.
951016:  CAAC Naples Consultation Sheet to USNH Mental Health.
         Reason for Request: Screen for Alcohol Dependency. Applicant m eets all DSM-IV criteria for Dependency. Drinks 25 beers and 8-9 shots of liquor 2 x weekly. Drinks for effect. Many incidents of fighting while drunk. Unhappy with the Marine Corps.

951020:  Psychiatric Clinic. Applicant Dependency Screening.
         Diagnosis: Alcohol Dependence, Adjustment Disorder, Personality Disorder NOS, Narcissitic Traits.
         Recommendation: Meets criteria for alcohol dependence and agrees to CAAC recommendation for Level III. Is a future risk to harm others if kept in present situation and especially if uses ETOH. Applicant feels lack of trust for chain of command if kept in present situation and may act out if feels mistreatment by other Marines. Follow up with Mental Health Unit.

951207 :  Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 93, 128 (4 specifications), and 134 .
951219 :  Charges referred to special court-martial.



960312 :  Applicant consulted with counsel and requested administrative discharge Under Other Than Honorable Conditions in lieu of trial by court- martial under circumstances which could led to a Bad Conduct Discharge. 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. The Applicant is completely satisfied with the counsel that he has received. He understands that characterization of service as other than honorable is authorized and that he may in fact receive an administrative discharge under other than honorable conditions . The Applicant admitted guilt to the following violations of the UCMJ, Article 93 : Did, on or about 950302, maltreat LCpl L_ J. C_, U.S. Marine Corps, a person subject to his order, by pulling him out of his rack at night and placing him in a darkroom pointing his finger and yelling “if you guys can’t PT you are going to get your a _ _ kicked ”, and hitting him in the forehead; Article 128: (4 specifications), Spec 1: Did, on or about 950302, unlawfully strike LCpl L_ J. C_, U.S. Marine Corps, with open hand ; Spec 2: Did, on or about 9505, unlawfully strike and kick LCpl S_ W. R_, U.S. Marine Corps, in the head with his fist s and feet ; Spec 3: Did, on or about 9505, unlawfully strike and kick LCpl S_ W. R_, U.S. Marine Corps, in the stomach with his fist; Spec 4: Did, on or about 9505 unlawfully bite the ear of LCpl S_ W. R_, U.S. Marine Corps, and unlawfully strike in the head with his hand; Article 134: Did, on or about 950302, wrongfully communicate to LCpl L_ J. C_, U.S. Marine Corps, a threat to injure by telling him “If you tell anyone about what happened you’re done too. You are going to get your a _ _ kicked ” .
960318:  Commanding Officer, Marine Corps Security Force Company, Naples Italy, recommended to the Commanding Officer, U.S. Naval Support Activities, Naples Italy, that the Applicant’s request for administrative discharge under other than honorable conditions in lieu of trial by court-martial be approved.
960321 :  SJA recommend s that PFC K_ be immediately discharged under other than honorable conditions as the only appropriate separation measure in lieu of trial by court-martial.

960327 :  GCMCA, Commanding Officer , U.S. Naval Support Activity, Naples, Italy approved the Applicant's discharge under other than honorable conditions by reason of in lieu of trial by court-martial .

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19960410 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).

Equity – Quality of service: The Applicant contends that his discharge should be upgraded because of his overall record of service, to include decorations and awards.

On 19960312 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 the offenses. 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 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, Articles 93 (cruelty, maltreatment of subordinates) and 128 (assault, consummated by battery).

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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