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

 ex-LCpl, USMC
Docket No. MD01-01142

Applicant’s Request

The application for discharge review, received 010830, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance discharge review before a traveling panel closest to [left blank].  The applicant listed a civilian counsel as the representative on the DD Form 293.  In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area.  The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020529.  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/MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.6.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  THE DISCHARGE WAS IMPROPER BECAUSE IT WAS BASED ON A FINDING OF GUILT, BASED ON A PREPONDERANCE OF THE EVIDENCE, RATHER THAN GUILT BEYOND A REASONABLE DOUBT

2.  IT WAS ABUSE OF PROCESS TO CONVENE AN ADMINISTRATIVE DISCHARGE BOARD FOR THIS MATTER

Documentation

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

Copy of DD Form 214
Brief from civilian counsel
Ninety-six pages from applicant's service record
Copy of DD Form 149 with attachment (3 pages)

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		810827 - 870219	HON
		   USMC		870220 - 930114	HON
		   USMC		930115 - 960718	HON
	Inactive: USMCR(J)		801213 - 810826	COG

Period of Service Under Review:

Date of Enlistment:  960719		Date of Discharge:  000817

Length of Service (years, months, days):

	Active:    04  00  29
	Inactive:  None

Age at Entry:  33			Years Contracted: 4

Education Level:  13			AFQT:  35/45

Highest Rank:  GySgt

Final Enlisted Performance Evaluation Averages:  All enlisted performance reports were available to the Board for review through 990301.

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM (7), SSDR (4), KLM (K), NUC (2), MUC (2), NASR, KLM, SASM (2), Letter of Appreciation (2)

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.6.

Chronological Listing of Significant Service Events:

991201:	Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 80:  Attempt to commit sodomy by force and without consent 0n 10Sep99, Article 134: Commit and indecent assault, to wit: by pulling down shirt and bra to expose her breasts, grabbing her arm and pinning it behind her back, pulling her pants down, pulling her into a bedroom, pushing her on to a bed, sucking her breasts, placing his head between her legs and inserting his fingers into her vagina, removing his finger and then placing his finger into her vagina again, placing his penis on her buttocks and "dry humping" her, grabbing her by the neck and placing his penis on her face while attempting to place his penis in her mouth, all with the intent to gratify his sexual desires.

000224:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

000303:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

000303:	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 your commission of the following serious offenses: Indecent assault, attempt (forcible sodomy), and assault. 

000303:	Charges and specifications dismissed.

000313:	Victim recanted her statement.

000316:	An Administrative Discharge Board, based upon a preponderance of the evidence and by a vote of 2 to 1, found that the applicant had committed misconduct due to the commission of a serious offense, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

000505:	SJA review determined the case sufficient in law and fact.

000811:	Commandant of the Marine Corps directed the applicant's discharge under other than honorable conditions 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 000817 under other than honorable conditions 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).

Issue 1.  The Board could discern no inequity or impropriety in the procedures of the applicant’s administrative discharge board.  The standard of proof is a preponderance of evidence as to all matters before the administrative separation board.  On 000505 the applicant’s discharge proceedings were reviewed and found sufficient in law and fact.
Relief denied.

Issue 2.  The Board could discern no abuse of process or other inequity or impropriety in the conduct of the applicant’s administrative separation.  A military or civilian conviction is not necessary for a Marine to be administratively separated for misconduct, and the applicant’s commanding officer was exercising proper authority when he initiated administrative separation proceedings.  The applicant failed to establish that processing the applicant for administrative separation was not lawful in this case.  Further, the NDRB was not convinced that the applicant’s commanding officer exerted an undue influence on the administrative separation board.  Relief denied. 

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 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 80, attempted sodomy; Article 134, indecent 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 “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