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

ex-Cpl, USMC
Docket No. MD00-00829

Applicant’s Request

The application for discharge review, received 000619, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to medical.  The applicant requested a personal appearance before the Board in the Washington National Capital Region.  The applicant listed the American Legion as his representative on the DD Form 293.

Decision

A personal appearance discharge review hearing was conducted in Washington, D.C. on 010426.  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.  (Equity)  This former member opines that a disorder, exhibitionism, sufficiently mitigated his conduct of record to warrant the Board’s relief.

2.  (Equity)  This former member further opines that his post-service conduct has been sufficiently creditable to warrant the Board’s clemency relief as authorized under provisions of SECNAVINST 5420.174.C, enclosure (1) paragraph 9.3.

Documentation

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

Copy of DD Form 214
       Treatment Summary and Assessment dated March 31, 2001
       Suffolk County Police department report, dated 4/10/01
       Suffolk County Community College letter 9/14/00
       Suffolk County Community College transcripts (2 pages).
       Long Island University College transcripts (2 pages).
       Character reference letter from Adecco, dated April 09, 2001
       Character reference letter from Robert Half company, dated April 7, 2001
       Character reference letter from Bri-Den Construction Co, dated 6 April 2001.
       Character reference letter from Suffolk County Community College, dated March
22, 2001.
       Character reference letter from Dare Studios, dated 3/19/01.
       Character reference letter from chief of Intelligence, 440 OSF/IN GMIAP-ARS
Milwaukee, WI.
       Credit report, dated Apr 21, 2001.
       W-2 statements from 1997, 1998, and 2000.

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		870722 - 880413	COG

Period of Service Under Review:

Date of Enlistment:  880414		Date of Discharge:  920518

Length of Service (years, months, days):

	Active:    04  01  05
	Inactive:  None

Age at Entry:  17 Parental Consent		Years Contracted:  4

Education Level:  12			AFQT:  91

Highest Rank:  Cpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.5 (7)			Conduct:  4.1 (7)

Military Decorations:  None

Unit/Campaign/Service Awards:  Letter of Appreciation (2), NDSM, GCM

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:

900627:	Counseled for deficiencies in performance and conduct.  [Driving on state suspended driving privileges.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  
910916:	Counseled for deficiencies in performance and conduct.  [Disrespect towards female Marines.  Specifically, physically grabbing a junior female Marine and on several occasions entering a females' barracks room and head unannounced and without knocking.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  Applicant refused to sign counseling entry.

920426:	Counseled for deficiencies in performance and conduct.  [Lack of responsibility as Band duty driver.  Specifically his reckless driving abandonment of a government vehicle, and leaving the scene of an accident.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

920430:	Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ), Article 91: Violation of Article 91: Treat with contempt and was disrespectful in language and deportment toward Sergeant by reacting with disgust to Sergeant's instructions, by stating in an insolent manner "I really don't have time for this, I'll come back later," and by failing to respond to questions posed by Sergeant by rudely yanking a check-out sheet out of Sergeant's hands and by rolling his eyes in a contemptuous manner to Sergeant and by stating in a disrespectful manner on 21Apr92 and Article 134 (5 specifications): (1) Willfully and wrongfully expose in an indecent manner to public view his erect penis on 22Jan92, (2) Willfully and wrongfully expose in an indecent manner to public view his erect penis on 29Jan92, (3) Wrongfully commit an indecent act with Lance Corporal, by repeatedly placing his hand into his jogging shorts, grabbing his erect penis, and masturbating, in the full sight and presence of the Lance Corporal, while she was standing duty on 20Dec91, (4) Wrongfully commit an indecent act with Corporal, by placing his hand into his jogging shorts, grabbing his erect penis, and masturbating, in fully sight and presence of Corporal, while she was standing duty on 22Jan92, (5) Wrongfully commit an indecent act with Corporal, by placing his hand on his erect penis, masturbating, and ejaculating onto the floor, in full sight and presence of Corporal, while she was standing duty on 30Jan92.

920501:	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 with the exception of specification 3 to the following violations of the UCMJ, violation of Article 91: Treat with contempt and was disrespectful in language and deportment toward Sergeant by reacting with disgust to Sergeant's instructions, by stating in an insolent manner "I really don't have time for this, I'll come back later," and by failing to respond to questions posed by Sergeant by rudely yanking a check-out sheet out of Sergeant's hands and by rolling his eyes in a contemptuous manner to Sergeant and by stating in a disrespectful manner on 21Apr92 and Article 134 (5 specifications): (1) Willfully and wrongfully expose in an indecent manner to public view his erect penis on 22Jan92, (2) Willfully and wrongfully expose in an indecent manner to public view his erect penis on 29Jan92, (3) Wrongfully commit an indecent act with Lance Corporal, by repeatedly placing his hand into his jogging shorts, grabbing his erect penis, and masturbating, in the full sight and presence of the Lance Corporal, while she was standing duty on 20Dec91, (4) Wrongfully commit an indecent act with Corporal, by placing his hand into his jogging shorts, grabbing his erect penis, and masturbating, in fully sight and presence of Corporal, while she was standing duty on 22Jan92, (5) Wrongfully commit an indecent act with Corporal, by placing his hand on his erect penis, masturbating, and ejaculating onto the floor, in full sight and presence of Corporal, while she was standing duty on 30Jan92.

920512:	SJA review determined the case sufficient in law and fact.

920512:	GCMCA [Commanding General, 2d Marine Aircraft Wing, FMF Atlantic] 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.

930923:	NDRB documentary record review Docket Number MD93-01562 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 920518 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).

Issue 1.  (Equity Issue)  The applicant states that a disorder, exhibitionism, sufficiently mitigated his misconduct of record to warrant the Board’s relief.  The Board determined that acknowledgement of or proof of exhibitionism does not mitigate the applicant’s misconduct.  The applicant admitted to committing the misconduct and elected an Other Than Honorable discharge vice a Special Court Martial.  The discharge was proper and equitable.  Relief denied.

Issue 2.  (Equity Issue)  The applicant opines that his post-service conduct has been sufficiently creditable to warrant the Board’s clemency relief.  The applicant provided proof of employment, a criminal background check, college transcripts, and reference letters.  The Board determined that the applicant’s military misconduct and similar post service behavior, clearly demonstrates that his military misconduct was not an anomaly.  His discharge characterization accurately reflects his service to his country.  The Board determined the discharge was proper and equitable.  Relief denied.

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 91 (disrespect) and Article 134 (indecent exposure).

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