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

ex-PFC, USMC
Docket No. MD00-00936

Applicant’s Request

The application for discharge review, received 000725, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  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 010201.  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 (verbatim)

1   I received letters of recommdation.
2.  I have been a good citizen since the discharge.
3.  My ability to serve was impaired by my youth and immaturity
4.  Personal problems impaired my ability to serve.
5.  The punishment I got at discharge was too harsh-it was much worse than most people who got for the same offense.
6.  My command abused its authority when it decided to discharge me and decided to give me a bad discharge
7.  Victims accused me of being there but not as committing the offenses.
8.  I did not got to trial but was convicted of a felony.
9.  The evidence did not point at me but did point out all the other individuals.
10. I did not get the proper advice from the attorney that defended me.

Documentation

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

Copy of Letter of Appreciation dated August 31, 1999
Copy of Certificate of Appreciation dated September 30, 1999
Copy of cover letter re: Letter of Appreciation dated September 29, 1999
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		980814 - 991220	COG

Period of Service Under Review:

Date of Enlistment:  981102		Date of Discharge:  991220

Length of Service (years, months, days):

	Active:    01  01  19
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  57

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (3)			Conduct:  4.2 (3)

Military Decorations:  None

Unit/Campaign/Service Awards:  None 

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:

991012:	Counseled for deficiencies in performance and conduct.  [Apprehended for underage drinking on 28Aug99.  You have been screened by the Battalion SACO and were recommended for command education on 30Aug99.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

991122:	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 80: Attempt to steal $20.00, by means of force and violence and putting Pvt in fear on 26Jun99, Article 92: Wrongfully consuming alcoholic beverage under the legal drinking age of 21 years of age on 26Jun and 8Oct99, Article 95: Resist being apprehended on 26Jun99, Article 117: Wrongfully use provoking and reproachful words on 26Jun99, Article 128: Assault Pvt on 26Jun99, by throwing him against a wall, and unlawfully strike T_ S_ in the stomach with a closed fist, Article 134: Drunk and disorderly on 8Oct99 and Dishonorable fail to pay debt of $14.42 to Taxi Company on 8Oct99.

991202:	SJA review determined the case sufficient in law and fact.

991209:	GCMCA [Commander, Marine Corps Base, Camp Smedley D. Butler] 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 991220 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 although the applicant may have received letters of recommendation, the applicant’s misconduct outweighed these good aspects of service.  No relief will be granted based on this issue. 

In the applicant’s issue 2, the Board found that there is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the Service.  However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (D).  Those factors include, but are not limited to, the following:  evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct.  At this time, the applicant has not provided any documentation of good character and conduct.  Therefore no relief will be granted.  The applicant is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15-years from the date of discharge.

In the applicant’s issue 3, the Board found that the applicant’s age, education level, and test scores qualified him for enlistment.  While he may feel that his youth and immaturity was a factor that contributed to his action, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service.  The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions.

In the applicant’s issue 4, the Board found nothing in the records nor did the applicant submit any supporting documentation that showed that his personal problems were of sufficient magnitude that they could not be resolved through standard military channels or by the applicant’s chain of command.  In fact, the Board found that the applicant’s age, education, test scores, prior service, promotions and awards were sufficient to qualify him for enlistment.  The Board will not grant relief on the basis of this issue.

In response to the applicant’s issues 5 and 6, the Board found that the punishment of any service member was then, and is now, a legitimate function of command judgement and prerogative.  The command did not abuse its authority when it elected to discharge the servicemember.  Furthermore, the applicant has failed to substantiate how the alleged misconduct of another service member could excuse his own misconduct.  No relief will be granted based on this issue. 

The applicant states in issues 7 and 9 that “victims accused me of being there but not as committing the offenses” and that “the evidence did not point at me but did point out all the other individuals.”  On 991122, the applicant admitted guilt to the following violations of the UCMJ, Article 80: attempt to steal $20.00, by means of force and violence and putting Pvt in fear on 26Jun99, Article 92: Wrongfully consuming alcoholic beverage under the legal drinking age of 21 years of age on 26Jun and 8Oct99, Article 95: Resist being apprehended on 26Jun99, Article 117: Wrongfully use provoking and reproachful words on 26Jun99, Article 128: Assault Pvt on 26Jun99, by throwing him against a wall, and unlawfully strike T_ S_ in the stomach with a closed fist, Article 134: Drunk and disorderly on 8Oct99 and Dishonorable fail to pay debt of $14.42 to Taxi Company on 8Oct99.  No relief will be granted based on this issue. 

In the applicant’s issue 8, the Board found that the applicant was not convicted of a felony.  The applicant was going to be brought to a court martial, but instead requested a discharge for the good of the service to escape trial by court- martial, and was therefore discharged “in lieu of trial by court martial.”  The applicant was separated administratively under other than honorable conditions.  This is not a felony conviction.  No relief will be granted based on this issue. 

In the applicant’s issue 10, the Board found that the applicant was properly counseled by adequate counsel and had the right to choose either his own attorney or to have proceeded with the court martial.  The applicant could have received a Bad Conduct Discharge if convicted at this court martial in addition to having a felony conviction in his record.  Instead, the applicant was administratively discharged under other than honorable conditions.  The Board cannot alter history and the course of action that the applicant chose to follow under advice from counsel.  Relief is 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 P1900.16E), effective 
18 Aug 95 until present.

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 128, assault.

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