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

 
 ex-LCpl, USMC
Docket No. MD00-00614

Applicant’s Request

The application for discharge review, received 000412, requested that the characterization of service on the discharge be changed to honorable.  The applicant a personal appearance hearing before the Board in the Washington National Capital Region.  The applicant listed the Veterans of Foreign Wars as his representative on the DD Form 293.

Decision

A personal appearance hearing discharge review was conducted in Washington, D.C. on 000807.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety but did discern inequity based on an outstanding record of post-service conduct.  The Board’s vote was three votes for an honorable discharge and two votes for a general discharge.  The discharge shall change to:  HONORABLE /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 (verbal)

The applicant and his representative requested that the Board consider post-service factors in the recharacterization of the applicant’s discharge.

Documentation

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

Copy of applicant's resume
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   USA			790619 - 820618	HON
	Inactive: USAR		820703 - 870113	COG
   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:  27			Years Contracted:  4

Education Level:  16			AFQT:  42

Highest Rank:  Cpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.6*			Conduct:  4.4*

Military Decorations:  None

Unit/Campaign/Service Awards:  Certificate of Appreciation, SSDR, Letter of Appreciation, NDSM, MUC, GCM (Army), OSR (Army)

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:

911218:	Applicant acknowledges illegal use of Sergeant's calling card and volunteer's to pay for his call of $2.97k.
920109:	NJP for violation of UCMJ, Article 121:
Specification: Steal under false pretenses telephone services, of a value of $2.97, by utilizing an AT&T calling card number, the personal property of Sergeant R_.
Awarded forfeiture of $280.00 per month for 1 month, restriction and extra duties for 14 days.  Forfeiture suspended for 3 months.  Not appealed.

920130:	CID investigation of unauthorized use of Sergeant's calling card.

920203:	Vacate suspended forfeiture awarded at CO's NJP dated 9Jan92.

920303:	Applicant admitted to Naval Medical Center, Department of Psychiatry, Bethesda, MD.

920313:	Applicant discharged from psychiatric ward.  Diagnoses: Axis I: Malingering, adjustment disorder depressed mood, cocaine abuse, in remission, alcohol abuse.  Axis II: Personality disorder, NOS, irritation of pinequeculae with antisocial, narcissistic, and passive aggressive features.  Recommendations: Administrative separation on the basis of his personality disorder.

920324:	CID report located in previous case file under DD Form 293.

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 Than Honorable conditions. The applicant admitted guilt to the following violations of the UCMJ, Article 134: On 18 December 1991, with intent to defraud, falsely pretend to AT&T, that knowing that the pretenses were false, and by means thereof did wrongfully obtain from AT&T services, of a value of $277.40, to wit: using an AT&T calling card number belonging to Sergeant R_.  The  applicant was charged with the following for which he denied guilt: Article 107 (4 specifications): False official statements.

920612:	SJA concurred with request and recommended approval of request for separation. SJA further recommended applicant be administratively reduced to the grade of lance corporal concomitant with applicant's separation.

920616:	GCMCA [Commanding General, Marine 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.

000110:	NDRB documentary record review Docket Number ND99-00464 conducted.  Determination:  discharge proper and equitable; relief not warranted.

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 but not equitable based on an outstanding post-service record. (D and E).

The Board took into consideration all service including the infraction of discipline, the extent thereof, and the seriousness of the offense.  The Board determined that the applicant’s generally acceptable personal conduct and performance of duty, when combined with his excellent post-service conduct, mitigated his misconduct.  Accordingly, the Board voted to grant relief in the form of an upgrade of characterization of service to fully honorable.

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 134, for obtaining services under false pretenses.

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 view DoD Directive 1332.28 and other Decisional Documents by going online at “afls14.jag.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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023