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

 ex-LCpl, USMC
Docket No. MD99-00464

Applicant’s Request

The application for discharge review, received 990211, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant listed VETERANS OF FOREIGN WARS as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000110.  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/Conduct triable by courts-martial (request for discharge for the good of the service), authority: MARCORSEPMAN Par. 6419.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  I feel that I was charge twice for the same crime and do not believe that the other than honorable discharge was fair.

2.  The	 evidence shows that the Criminal Investigation Division (CID) initiated an investigation on 2 DEC 91.  The investigation was not complete and a final report filed until 24 MAR 92.  However Applicant was awarded non-judicial punishment (NJP) on 9 JAN 92 for unauthorized use of AT&T card during October 1991.  The charge referred to court martial was for unauthorized use on or about 18 DEC 91.  This was prior to the completion of the CID investigation.  We contend that it is improper to charge a member with a crime and punish him for piecemeal specifications while there is an ongoing investigation into the allegations.  Applicant only took the card once.  Therefore we submit that the charge of the unauthorized use of the AT&T card is disposed of at NJP held 9 JAN 92,

3.  The false official statements Applicant was charged with were made in the NCO Club, during evening hours and while alcoholic beverages were being served.  There is no evidence, including statements made by the MySgt that indicates the MySgt was performing an official duty or in the execution of his office when questioning Applicant.  Therefore we submit that these statements would not be construed as official.

4.  In view of the above and based on the applicant's previous good service, we contend that a punitive discharge would likely not have resulted had the court martial taken place.  We ask that relief be granted and the applicant's discharge be upgraded as appropriate.

Documentation

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

Copies of DD Form 214 (4)
Letter from applicant (2pgs)
Child Abuse History Clearance
Request for Criminal Record Check
Copies of Discharge Orders (2)
Separation Travel Payment Statement
Disciplinary Restraint Notice (3pgs)
Safe Driving Achievement Certificate
Certificate of Completion for Physical Training Management
Certificate of Completion for Leadership
Certificate of Completion for Techniques of Military Instruction
Certificate of Completion for Weapons
Certificate of Completion for Terrorism Counteraction for Marines
Certificate of Completion for Personal Finance
Separation Travel Pay Certificate
Service Record entries (2 pgs)
UMCJ Report
Misconduct Statement from Applicant (2pgs)
NJP information (4pgs)
Notification and Election of rights (4pgs)
Copy of SNCO Club sign-in log
Criminal Investigation Report (55pgs) 

PART II - SUMMARY OF SERVICE

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

	Active:   USA			790619 - 820618	HON
	Inactive:  USAR 		820703 - 870113	COG
	Inactive:  USMCR(J)		890508 - 890510	COG

Period of Service Under Review:

Date of Enlistment:  890511		Date of Discharge:  920623

Length of Service (years, months, days):

	Active:  03  01  13
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  16			AFQT:  42

Highest Rank:  Cpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.60 (0)		Conduct:  4.4(0)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Sharpshooter Badge, SSDR, NDSM, MUC, GCM(Army), OSR (Army), LOA 

Days of Unauthorized Absence:  None 

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

UNDER OTHER THAN HONORABLE CONDITIONS/Conduct triable by courts-martial (request for discharge for the good of the service), authority:  MARCORSEPMAN Par. 6419.

Chronological Listing of Significant Service Events:

911202:	CID initiates investigation of unauthorized us of SGT ____’s calling card.

911218:	Applicant acknowledges illegal use of SGT ____’s calling card and volunteer’s to pay for his call of $2.97.  

920109:	NJP for violation of UCMJ, Article 121: Larceny
Awarded forfeiture of $280.00 per month for 1 months, restriction and 
extra duties for 14 days.  Not appealed.
		Forfeiture suspended for 3 months.

920130:	CID report forwarded to command.

920203:	Forfeiture vacated and ordered executed.

920324:	CID report forwarded to command for action.

920609:	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 was charged with the following for which he denied he was guilty: Article 107: (3 Specifications), Spec 1: With intent to deceive make a false official statements to Master Gunnery Sergeant B_____, to wit: "No, but my wife is a Staff Sergeant and I am her dependent, Spec : With intent to deceive make a false official statement to Master Gunnery Sergeant B_____, to wit: He said that he worked on computers at the Basic School, Marine Corps Combat Development Command, Quantico, Virginia, Spec 3: With intent to deceive make a false official statement to First Sergeant S______, to wit: by stating, "That Gunnery Sergeant B_____, didn't ask for his identification Card, "That he was at the SNCO Club with his wife and cousin "and "That his cousin who is Staff Sergeant in the Army signed him into the SNCO Club.  The applicant admitted guilt to the following violation of the UCMJ, Article 134: Obtaining services from AT&T under false pretenses, at a value of $277.40.

920612:	SJA review determined the case sufficient in law and fact.

920616:	GCMCA [Commanding General, Marines Corps Combat Development Command] 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.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 920623 under other than honorable conditions in lieu of trial by court-martial (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

In the applicant’s issue 1, the Board found that the applicant was charged with and found guilty of violation of UCMJ Article 121, Larceny and Wrongful Appropriation, at an office hours held 920109.  The Board acknowledges that the Criminal Investigation Division’s (CID) investigation had not been completed prior to the office hours.  But the Board did find that on 18 Dec 1991 during questioning by the CID, the applicant did confess to making an unauthorized telephone call with Sgt ___’s AT&T calling card totally $2.97.  The Commanding Officer had sufficient evidence to charge and punish the applicant, based on this confession.  

In the applicant’s issue 2, the board found that the applicant did not take the card only once as alleged, but used it 62 times within a 2 month period, amounting to a total bill of $277.40. This use of another Marine’s calling card constitutes larceny and is punishable under the UCMJ.   

Applicant’s issue three is not germane to this request.  The applicant states that the MSGT was not in an official duty or in the execution of his office when the MSGT questioned the applicant about his appearance in the NCO club.  The MSGT was simply questioning whether the applicant was entitled to be in the NCO club, which the applicant knew he was not.  The MSGT did not need to be in an official duty status to ask these questions. 

 In a signed statement, the applicant requested an administrative discharge under other than honorable conditions in lieu of a trail by court-martial.  He consulted with counsel and was fully advised of the implications of his request. The applicant stated he understood the elements of the offenses with which he was charged.  He admitted he was guilty of violating Article 121: Larceny.  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 P1900.16D), 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 violation of the UCMJ, Article [ e.g., Article 86, unauthorized absence for more than 30 days].

C.  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.  

D.  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.

E.  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