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

 ex-Sgt, USMC
Docket No. MD01-00179

Applicant’s Request

The application for discharge review, received 001127, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant listed the Disabled American Veterans as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010822.  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 HONORABLE CONDITIONS (GENERAL)/Misconduct – Commission of a serious offense (all other) admin discharge board required but waived, authority: MARCORSEPMAN Par. 6210.6.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  DISCRIMINATE

COURT MARTIAL TO GENERAL COURT MARTIAL TO SUMMARY TO ADMINISTRATION.

BASE ON MEDICAL RECORD
VA MEDICAL CENTER
3350 LA JOLLA VILLAGE DR (119)
SAN DIEGO, CA  92161

2.  After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we continue to note the request of tile FSM to change his current discharge of General Under Honorable Conditions to Honorable. The records show the FSM served on active duty from August 26, 1977 to August 25, 1980 with all Honorable discharge, with a second period of service from April 9, 1985 to February 25, 1994, at which time he received his current discharge.
Also reflected is the fact that the FSM waived his right to an Administrative Board February 11, 1994, on the condition that he receive a general discharge by reason of misconduct, also at the time admitting to guilt of dereliction of duty and fraternization, finalized on February 25, 1994. Additionally, on May 2, 1996 the United States Navy provided a records review and denial of an upgrade, informing the FSM that he could re-apply to the Discharge Review Board at a later time with new and material evidence.  At this time the FSM is exercising this right and maintains that new and material evidence his of record from First Sergeant P_ M_, and himself in the form of a statement, submitted with the DD 293 application. On this statement the FSM claims discrimination due to his disability of positive HIV, that the military railroaded him out of the service for the same.  Continuing to note improprieties in the handling of his case because the civilian lawyer and his OIC Colonel S_ were friends, and they deceived and misinformed him during the entire case, and is therefore requesting equitable relief in the form of an upgrade of his discharge. We ask for the Boards careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the applicant.  

Documentation

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

Letter from applicant, undated
Letter from applicant, undated
Letter from 1st Sgt, undated
Copy of DD Form 214
Letter from applicant to congressman dated February 17, 1994

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		770826 - 800825	Transferred to MCR
Inactive: USMCR		800826 - 800901	HON
	Active:   USANG		800902 - 850226	HON
	Inactive: USMCR(J)		850227 - 850408	COG
	Active:   USMC		850409 - 880225	HON

Period of Service Under Review:

Date of Enlistment:  880226		Date of Discharge:  940225

Length of Service (years, months, days):

	Active:    06  00  00
	Inactive:  None

Age at Entry:  31			Years Contracted:  6

Education Level:  12			AFQT:  39

Highest Rank:  Sgt

Final Enlisted Performance Evaluation Averages:  All enlisted performance reports were available to the Board for review.

Military Decorations:  None

Unit/Campaign/Service Awards:  MM (5), Certificate of Achievement, SSDR w/2 Stars, HSM, GCM (2), MUC, Letter of Appreciation (4), Certificate of Appreciation, Certificate of Commendation (2), NDSM

Days of Unauthorized Absence:  None

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

UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct-Commission of a serious offense (all other) admin discharge board required but waived, authority:  MARCORSEPMAN Par. 6210.6.

Chronological Listing of Significant Service Events:

880225:	Applicant reenlisted for 6 years.

911213:	Applicant signed U.S. Navy HIV program, acknowledgement of counseling and education.

930309:	Applicant signed Preventive Medicine counseling.

930520:	Naval Criminal Investigative Service Report found in service record.  Investigation into alleged indecent assault and sodomy of PFC.

931026:	Copy of Article 32 investigation found in service record.

940127:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

940209:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

940211:	Applicant signed a conditional waiver of his right to an administrative discharge board on the condition that he receive no less than a general discharge under honorable conditions.  By requesting the conditional waiver, applicant admitted violation of Article 92: Dereliction of duty and Article 134: Fraternization.

940209:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  The factual basis for this recommendation was Article 32 Investigation and Naval Investigation Service Report dated 1 November 1993. 

940211:	SJA review determined the case sufficient in law and fact.

940211:	GCMCA [Commanding General, Marine Corps Recruit Depot/Western Recruiting Region] directed the applicant's discharge under honorable conditions (general) by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 940225 under honorable conditions (general) for misconduct due to the commission of a serious offense (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).

The Board found no evidence that the applicant was discriminated against on account of his Positive HIV status.  The applicant’s assertion of discrimination and corroboration by his former First Sergeant does not constitute sufficient evidence of impropriety.  The Board also rejects the applicant’s claim that he was misinformed by the nature of his administrative separation proceedings.  The record shows the applicant was a mature Marine with over 13 years of military service.  The applicant, after consulting with legal counsel, waived his right to contest the characterization of service at an administrative hearing on the condition that he receive no less than a general discharge.  By requesting the conditional waiver, the applicant admitted violation of Article 92: Dereliction of duty and Article 134: Fraternization.  The applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the applicant’s enlistment.  Additionally, 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 civilian life, subsequent to leaving the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct.  The applicant did not provide sufficient documentation to warrant an upgrade to his discharge.  He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210, Misconduct 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 92, dereliction of duty and Article 134, fraternization.

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 “afls10.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