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

 ex-PFC, USMC
Docket No. MD01-01207

Applicant’s Request

The application for discharge review, received 010919, requested that the characterization of service on the discharge be changed to honorable.  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 020620.  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

1.  Discrimination: Hispanic Race

2.  Language problems.

Documentation

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

Copies of DD Form 214 (2)
Service Related Documents (25pgs)

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		960703 - 970627	COG

Period of Service Under Review:

Date of Enlistment:  970628		Date of Discharge:  991015

Length of Service (years, months, days):

	Active:   02  03  18
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  36

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (5)			Conduct:  4.1 (5)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Sharpshooter Badge, SSDR

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:

981022:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 86: Failure to go to appointed place of duty.  Charge II: violation of the UCMJ, Article 91: (3 Specifications), Spec 1: Disobeying a Warrant, noncommissioned, or petty officer; Spec 2: Treating with contempt or being disrespectful in language or deportment toward a warrant, noncommissioned, or petty officer; Spec 3: Treating with contempt or being disrespectful in language or deportment toward a warrant, noncommissioned, or petty officer; Spec IV: Treating with contempt or being disrespectful in language or deportment toward a warrant, noncommissioned, or petty officer; Spec V: Disobeying a warrant, noncommissioned, or petty officer.
	Finding:  to Charge I and the specification thereunder, not guilty.  To Charge II and specifications 1, 2, and 3 thereunder, guilty; specifications 4 and 5 thereunder, not guilty.  
	Sentence:  Confinement for 5 days, forfeiture of $692.00, reduced to E-2.
	CA action 981028:  Sentence approved and ordered executed.	

990726:	Charge Sheet: Charge I: Violation of the UCMJ, Article 91: (3 Specifications), Spec 1: In that PFC D___ A. R____, U.S. Marine Corps, Headquarters and Service Battalion, Marine Corps Base, Quantico, Virginia, on active duty, having received a lawful order from Cpl K___ E. G____, U.S. Marine Corps, a noncommissioned officer, then know by the said PFC R____ to a be noncommissioned officer, to stand by outside his hatch, and order which it was his duty to obey, did at bldg #3040, Motor Transport, light section, on or about 990510, willfully disobeyed the same; Spec 2: In that PFC D___ A. R____, U.S. Marine Corps, Headquarters and Service Battalion, Marine Corps Base, Quantico, Virginia, on active duty 990510, was disrespectful in language and deportment toward Cpl K___ E. G____, U.S. Marine Corps, a noncommissioned officer, then know by the said PFC R____ to a be noncommissioned officer, by saying to him, "Fuck that shit, Fuck you", or words to that effect, Spec 3: In that PFC D___ A. R____, U.S. Marine Corps, Headquarters and Service Battalion, Marine Corps Base, Quantico, Virginia, on active duty, having received a lawful order from Sgt O.A. G____, U.S. Marine Corps, a noncommissioned officer, then know by the said PFC R____ to a be noncommissioned officer, to repeat what he had said and to stop walking away, and order which it was his duty to obey, did at bldg #3040, Motor Transport, light section office, on or about 990510, willfully disobey the same.  Charge II: violation of the UCMJ Article 134: In that PFC D___ A. R___, U.S. Marine Corps, Headquarters and Service Battalion, Marine Corps Base, Quantico, Virginia, on active duty, did at an unknown location, on or about 990215, violate Title 18, United States Code, 13, assimilating Code of Virginia, 4.1-305, by wrongfully drinking alcoholic beverage while under the drinking age.

990824:	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 one or more of the offenses charged, or some lesser included offenses thereof, for which a punitive discharge is authorized, Specifically admitted guilt to violations of the UCMJ, Article 91: Disobeying a lawful order.

990929:	SJA concurs with the recommendation of Commanding Officer, Headquarters and Service Battalion that applicant be separated with a discharge under other than honorable conditions.

001006:	GCMCA [Commander, Marine Corps Base 3250 Catlin Avenue, Quantico, VA] 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 991015 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.  The Board found no documentation to support the applicant’s allegations of discrimination and that a language problem was responsible for his misconduct and subsequent administrative separation. 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. 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 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 86, unauthorized absence; Article 91, disobey a lawful order from a noncommissioned officer; Article 134, underage drinking.

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