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

 ex-Sgt, USMC
Docket No. MD99-00455

Applicant’s Request

The application for discharge review, received 990210, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 991206.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT-MARTIAL, authority: MARCORSEPMAN Par. 6419.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  Upgrade of discharge.

Documentation

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

Copy of DD Form 214 (2 copies)
Copy of DD Form 215 (2 dated 971027 and 1 dated 971029)
Copy of Certificate of change of name dated March 30, 1998
Statement from applicant (16 pages)
Statement from Corporal J_ S_ F_ dated 30 January 1998 (3 pages)
Character/job reference from RAMS Specialized Security Service, Inc dated February 6, 1998
Statement from applicant's wife dated May 14, 1998 (3 pages)
Character reference dated July 13, 1998 (2 pages)
Statement from applicant's father (3 pages)
Statement from applicant's mother dated May 9, 1998 (3 pages)
Copy of Performance Planning and Review from Wells Fargo Bank March 1998 to May 1998 (7 pages)
Fifty-three pages from applicant's service record

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Active:   USMC		910612 - 970228	HON
	Inactive:  USMCR(J)		910220 - 910611	COG

Period of Service Under Review:

Date of Enlistment:  970301		Date of Discharge:  971027

Length of Service (years, months, days):

	Active:    00  07  27
	Inactive:  None

Age at Entry:  23			Years Contracted:  4

Education Level:  12			AFQT:  Unreadable

Highest Rank:  Sgt

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  N/A			Conduct:  N/A	Sergeant evals

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR w/1*, GCM w/1*, MM (3), LOA (3), NAM, MUC

Days of Unauthorized Absence:  None

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:

970430:	Psychological Evaluation: Diagnostic Impression: 1. Alcohol abuse, r/o dependence.  2. Personality disorder NOS with passive aggressive and narcissistic features.  Subject psychiatrically fit for full duty, but may not be suitable.  Recommend routine administrative separation. 

970617:	Counseled for deficiencies in performance and conduct.  [Failure to obey a direct order/regulations and disrespect towards an AE1 which are violations of Articles 92 and 91.]   Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  Rebutted

970701:	Counseled for deficiencies in performance and conduct.  [Poor performance and refusal to participate in substance abuse treatment.]   Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  Rebutted  

971006:	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 the following violations of the UCMJ: Article 92: Failure to obey a lawful general order and other lawful order, and Article 128: Assault.

971027:	Chief of Naval Education and Training determined that applicant had no potential for further service, that separation in lieu of trial by court-martial was in the best interest of the service, and directed discharge under other than honorable conditions by reason of conduct triable by courts-martial.

All entries are from documents submitted from applicant.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 971027 under other than honorable conditions in lieu of trial by court-martial (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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 introduced no decisional issues for consideration by the Board.  The applicant plead guilty to disobeying a lawful order and assault, in lieu of Trial by Court Martial.  Relief denied.

 The following is provided for the applicant’s edification.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (E).  The applicant must be aware that 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.  Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, 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, may be considered by the NDRB.  The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is highly recommended.

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 95 until present.

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 obtain a copy of DoD Directive 1332.28 by writing to:

		DA Military Review Boards Agency
		Management Information and Support Directorate
		Armed Forces Reading Room
		Washington, D.C.  20310-1809

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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		Washington Navy Yard
		720 Kennon St SE Rm 309
		Washington, D.C.  20374-5023