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

ex-LCpl, USMC
Docket No. MD02-00671

Applicant’s Request

The application for discharge review, received 020409, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a personal appearance hearing before the Board in the Washington National Capital Region.  The Applicant listed a civilian counsel as the representative on the DD Form 293.

Decision

A personal appearance discharge review hearing was conducted in Washington, D.C. on 021105.  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 at the time of issue.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.6.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  The Applicant requested an upgrade to his characterization of service based upon his post-service conduct.

Documentation

In addition to the service record, and previous case, the following additional documentation, submitted by the Applicant, was considered:

Copy of NMCAM Citation (2 pages)
Copy of photo of DI School class
Employment history
Drug test form dated October 21, 2002
Letter from Okaloosa-Walton Community College dated March 5, 2001
Certification dated April 2, 2001
Copy of Letter of Appreciation
Certificate from Okaloosa-Walton Community College
Copy of fitness reports (4 pages)
Copy of Diploma for completion of USA Individual Infantry Training
Character reference letter from Cpl. D_ M. S_
Character reference letter from Cpl. M_ H_
Character reference letter from Capt. T. B_ (5 copies)
Copy of police record check dated April 25, 2002

PART II - SUMMARY OF SERVICE

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

	Active:   USA			880812 - 881110	HON
   USMC		900716 - 940120	HON
	Inactive: USMCR(J)		900424 - 900715	COG

Period of Service Under Review:

Date of Enlistment:  940121		Date of Discharge:  980115

Length of Service (years, months, days):

	Active:    03  11  25
	Inactive:  None

Age at Entry:  24			Years Contracted:  4

Education Level:  12 GED		AFQT:  32

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:  NAM, MUC, GCM, SSDR with 1 Star, AFEM, NDSM, Certificate of Commendation (2), Letter of Appreciation, MM (2), SASM with 1 Star, UNM, JMU

Days of Unauthorized Absence:  None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.6.

Chronological Listing of Significant Service Events:

940121:	Applicant reenlisted for 4 years.

941222:	Counseled for deficiencies in performance and conduct.  [Disenrollment from Drill Instructor School Class 1-95 due to not maintaining qualifications for DI duty IAW MCO 1326.6B by failing to master course requirements.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

960213:	NJP for violation of UCMJ, Article 128: Assault PFC by pushing him.
	Award: Forfeiture of $343 per month for 1 month, extra duty for 7 days.  No indication of appeal in the record.

970224:	Copy of Applicant's voluntary statement to Criminal Investigation Division in service record (4 pages).

970710:	Special Court-Martial.
Charge I: violation of the UCMJ, Article 81:
Specification: Conspire with PFC on 23Dec96.
Charge II: violation of the UCMJ, Article 107 (2 specifications):
Specification 1: Make an official statement by presenting false official
PCS orders on 23Dec96.
Specification 2: Make an official statement by presenting false official PCS orders on 15Jan97.
Charge III: violation of the UCMJ, Article 123 (2 specifications):
Specification 1: Utter a certain writing in the following words and figures, to wit: PCS orders dated 23Dec96, issued by CO, 7th MTBN, 1st FSSG, CamPen, CA to report to I & I Staff, San Juan, Puerto Rico, no later than 31Jan97 for duty, a writing which would, if genuine, apparently operate to the legal harm of another, which writing was, as he then well knew, falsely made, and which writing was used to the legal harm of Shadow Way Apartments in that Sgt was allowed to break his lease without penalty and void payment of $605.00.
Specification 2: Utter a certain writing in the following words and figures, to wit: PCS orders dated 23Dec96, issued by CO, 7th MTBN, 1st FSSG, CamPen, CA to report to I & I Staff, San Juan, Puerto Rico, no later than 31Jan97 for duty, a writing which would, if genuine, apparently operate to the legal harm of another, which writing was, as he then well knew, falsely made, and which writing was used to the legal harm of Department De Hacienda, Commonwealth of Puerto Rico, in that Sgt was allowed to bring his automobile into Puerto Rico without paying a luxury car tax of $3,568.25.
Findings: to Charge I, II and III and specifications thereunder, guilty.
Sentence: Forfeiture of $50.00 per month for 6 months, restriction for 2 months, reduction to LCpl, and punitive letter of reprimand.
CA 970710: Sentence approved and ordered executed.

970807:	Commanding Officer disapproved Applicant's request for clemency.

970911:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

970912:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

970912:	Commanding Officer recommended discharge under honorable conditions (general) by reason of misconduct due to the commission of a serious offense.  The factual basis for this recommendation was Applicant was found guilty of conspiring with a Lance Corporal to make a false official statement to SNM's landlord, by preparing false official permanent change of station (PCS) orders; of making a false official statement to Ms. J_ E_ L_, the manager of Shadow Way Apartments, Oceanside, California, by presenting those false PCS orders, which allowed SNM to break his lease without penalty and avoid payment of $605.00; and of defrauding Department De Hacienda, Commonwealth of Puerto Rico, by presenting false PCS orders to their representatives, which allowed SNM to bring his vehicle into Puerto Rico, without paying a luxury tax of $3,568.25. 

971118:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to the commission of a serious offense, that the misconduct warranted separation, and by a vote of 2 to 1 recommended a general discharge (under honorable conditions).

980112:	SJA review determined the case sufficient in law and fact.

980112:	GCMCA [Commanding General, 1st Force Service Support Group] directed the Applicant's discharge under honorable conditions (general) by reason of misconduct due to the commission of a serious offense.

010928:	NDRB documentary record review Docket Number MD01-00628 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 980115 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).

Issue 1.  The Applicant’s discharge characterization accurately reflects his service to his country.  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.  While the Board found the Applicant’s post service conduct to be commendable, the Board determined that the Applicant’s record of service does not support an upgrade to Honorable.  Relief not warranted.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 31 January 1997 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 81, conspiracy; Article 107, false official statements; Article 123, forgery.

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