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USMC | DRB | 2006_Marine | MD0600850
Original file (MD0600850.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. MD06-00850

Applicant’s Request
The application for discharge review was received on 20060601 . 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 20070329 . 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 - ISSUES AND DOCUMENTATION


Decisional Issues

Equity – Quality of service

Equity – Family situation

Equity – Post 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) (2)
Letter from Applicant, dtd March 27, 2006

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19891219 - 19900204       COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 19900205              Date of Discharge: 19960701

Length of Service (years, months, days):

 Active: 0 6 0 4 26
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 120 days (IHCA)
         Confinement:              None

Age at Entry: 18

Years Contracted: 6

Education Level: 12                                 AFQT: 9 0
Highest Rank: Cpl                                    MOS: 1345

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4 . 2 ( 18 )                       Conduct: 4 . 3 ( 18 )
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): National Defense Service Medal, Southwest Asia Service Medal with 2 Stars, Kuwait Liberation Medal, Sea Service Deployment Ribbon with 2 Stars, Good Conduct Medal, Combat Action Ribbon , Rifle Expert Badge (4 th Award)


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 :

891219:  Waiver approved (no additional information in service record).

950215:  Counseling: Advised of deficiencies in performance and conduct (You [Applicant] exceeded the military weight standards as set forth in MCO 6100.10B. Specifically, you are overweight, weighing 215 lbs and you are directed to lose 12 lbs by 950624), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
950224:  Counseled concerning inadequate and substandard performance of duty as a non-commissioned officer. Applicant counseled and advised to improve his leadership skills and abilities, physical fitness, personal appearance, and financial responsibilities. Applicant advised that further negative incidents will result in disciplinary action.

950424:  Applicant’s license suspended for a period of 60 days, by order of Commanding Officer, for lack of concern to equipment safety. Suspension expires 950606. Applicant advised that within 5 working days after acknowledgment of this entry a written rebuttal may be submitted and that such a rebuttal will be filed o n the document side of his record book. Applicant choose to make a statement.

950424:  Counseling: Advised of deficiencies in performance and conduct (You [Applicant] have developed a pattern of misconduct by your frequent involvement with both civil and military authorities, specifically your repeated tardiness, failure to comply to equipment safety, lack of responsibility, judgement, and financial irresponsibility as evidenced by your returned draft #806 and 807 for the amount of $250.00. This is the second notice of the returned drafts at this command), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
950612:  NJP for violation of UCMJ, Article 86: Did on or about 950515, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Court Call.
          Award: Forfeiture of $ 5 00 .0 0 pay per month for 2 month s (suspended for 6 months) , correctional custody for 3 0 days (suspended for 6 months) , reduction to E- 3 . Appealed 950620 A ppealed denied 950728 .
951002:  Counseled for financial irresponsibility as evidenced by your (Applicant) returned draft numbers 145, 812, and 813 for the amount of $291.07. This is the third notice of returned drafts at this command.
9512XX:  Notification of Decision. President, Physical Evaluation Board letter to Commandant of the Marine Corps. President of PEB considered the physical condition of the Applicant as referred by a medical officer to determine his fitness for duty. The Applicant was found fit to perform the duties of his office, grade, or rank on active duty. [Specific date not legible.]

951212:  Applicant’s service record, OPNAV 5211, “Record of Disclosure”. T. W. B_ , NCIS Special Agent reviewing the Applicants service record for purpose of investigation.
960302:  DD Form 214: Date of lost time begins 960302.
960311 :  Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 86: (3 specifications): Unauthorized absence ; Article 107: False official statement; Article: 121 (9 specifications): Stealing U.S. currency; Article 123 (5 specifications): Wrongfully and unlawfully making checks .
U ndated :         Charges referred to special court-martial.
960328 :  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 it has been fully explained the elements of the offenses for which he was charged and that he understood the elements of the offenses. He understand s that the characterization of service would be under other than honorable conditions. The Applicant admitted guilt to the f ollowing violations of the UCMJ: Article 86 (3 specifications) Spec 1: Did on or about 1100, 951227, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Physical Training Platoon ; Spec 2: Did on or about 1100, 960103, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Physical Training Platoon; Spec 3: Did on or about 0730, 960206, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: S-4 shop, Marine Wing Support Squadron 272, Marine Corps Air Station, New River, Jacksonville, North Carolina ; Article 107: On or about 951207, with intent to deceive, make to Special Agent T_ W. B_, United States Naval Criminal Investigative Service, an official statement, to wit: “I did not sign these particular checks, nor did I cash them”, which statement was totally false ; Article 121 (9 specifications); Spec 1: On or about 951110, steal U.S. currency, of a value of $200.00 property of Morale, Welfare, and Recreation Activity; Spec 2: On or about 951111, steal U.S. currency, of a value of $200.00 property of Morale, Welfare, and Recreation Activity; Spec 3: On or about 951115, steal U.S. currency, of a value of $150.00 property of Morale, Welfare, and Recreation Activity; Spec 4: On or about 951116, steal U.S. currency, of a value of $200.00 property of Morale, Welfare, and Recreation Activity; Spec 5: On or about 951116, steal U.S. currency, of a value of $200.00 property of Morale, Welfare, and Recreation Activity; Spec 6: On or about 951123, steal U.S. currency, of a value of $200.00 property of Morale, Welfare, and Recreation Activity; Spec 7: : On or about 951124, steal U.S. currency, of a value of $200.00 property of Morale, Welfare, and Recreation Activity; Spec 8: On or about 951126, steal U.S. currency, of a value of $200.00 property of Morale, Welfare, and Recreation Activity; Spec 9: On or about 951128, steal U.S. currency, of a value of $200.00 property of Morale, Welfare, and Recreation Activity ; Article 123 a (5 specifications); Spec 1: On or about 951110, wrongfully and unlawfully make to Morale, Welfare, and Recreation, a certain check upon the Marine Corp Federal Credit Union in the amount of $200.00 without having sufficient funds with suc h bank; Spec 2: On or about 951111, wrongfully and unlawfully make to Morale, Welfare, and Recreation, a certain check upon the Marine Corp Federal Credit Union in the amount of $200.00 without having sufficient funds with suc h bank; Spec 3: On or about 951115, wrongfully and unlawfully make to Morale, Welfare, and Recreation, a certain check upon the Marine Corp Federal Credit Union in the amount of $150.00 without having sufficient funds with suc h bank; Spec 4: On or about 951116, wrongfully and unlawfully make to Morale, Welfare, and Recreation, a certain check upon the Marine Corp Federal Credit Union in the amount of $200.00 without having sufficient funds with suc h bank; Spec 5: On or about 951120, wrongfully and unlawfully make to Morale, Welfare, and Recreation, a certain check upon the Marine Corp Federal Credit Union in the amount of $200.00 without having sufficient funds with suc h bank.

960402:  Applicant’s Trial Counsel recommends to Commanding General, 2d Marine Aircraft Wing that the Applicant’s request for separation under other than honorable conditions in lieu of trial by Special Court-Martial be approved. Trial Counsel comments: “ 2. Lance Corporal C_ (Applicant) is currently confined in the hands of civilian authorities serving a 120 day sentence for writing bad checks to MWR while under a suspended sentence in Onslow County. 3. Lance Corporal C_ is currently confined in the hands of local authorities serving a 120 day jail sentence pursuant to a guilty plea entered in District Court for worthless check offenses. ”



960403:  Commanding Officer, Marine Wing Support Squadron 272 recommended to the Commanding General, 2d Marine Aircraft Wing, that the Applicant’s request for separation in lieu of trial by court martial be approved.
960418 :  SJA review determined the case sufficient in law and fact.
960418 :  GCMCA, Commanding General 2d Marine Aircraft Wing, directed the Applicant's discharge under other than honorable conditions by reason of in lieu of trial by court-martial .
960701:  DD Form 214: Date of lost time ends. Applicant discharged this date.
         Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19960701 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).
Equity – Quality of service: The Applicant contends that his discharge should be upgraded because the first 5 ½ years of his service was honorable.
Equity – Family situation: The Applicant contends that his marital situation lead to his use of alcohol and was reflected in the performance of his duties.

 In a signed statement, the Applicant requested an administrative discharge under other than honorable conditions 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 Articles 86, 107, 121, and 123a of the UCMJ. 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.

Equity – Post service: The Applicant states that since his discharge that he has been gainfully employed with same company and that he has many responsibilities as Vice President.
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. However, 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 the civilian life subsequent to leaving the service. 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 any 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 107 (false official statements), 121 (larceny), and 123a (checks, insufficient funds.)

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 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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