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

 ex-LCpl, USMC
Docket No. MD02-00922

Applicant’s Request

The application for discharge review, received 020614, 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030319.  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, as submitted

1.  However voluntary, I feel that my discharge was unjustified for the fact that, I was brought up on charges for disobeying a direct order to break contact with someone who requested my help with a situation.  The command had been notified of the problem and refused to assist in a matter where their assistance was of dire request.

     While serving with Marine Corps Security Force Company, NSB Bangor, WA, I became friends with another Marine, LCpl D_ W_.  About 2 months after my arrival to the command he moved his wife up to the area and we all became good friends.  Shortly after our introduction she began to tell me of LCpl W_'s abusive behavior towards her.  I advised her to bring it to the attention of our command and let them deal with it accordingly.  She repeatedly visited the Commanding Officer LtCol. R_ H_ to show him physical evidence of the abuse and to notify him of the behavior of LCpl W_.

     After repeated requests for assistance from the command and no apparent actions made by the CO, she returned to me for assistance.  She simply asked me to assist her to leave the situation.   After witnessing the abuse and being of high beliefs and morals, I agreed to assist her to remove her personal belongings from their dwelling.  

     As soon as the command got word of my actions the CO called me into his office. He then issued me a direct order to break all contact with her.  Refusing to set aside my morals I disobeyed the order and continued to assist her.  The CO then sent me up for a Special Court Martial.  After consultation with JAG Officer Lt. T_ M_, she advised me to pursue the Court Martial, feeling that I had a strong case.  After long deliberation I entered a plea and accepted a General under other than honorable conditions Discharge.

Documentation

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

Copy of DD Form 214 (2 copies)
Applicant's letter requesting admin discharge in lieu of trial by court-martial dtd 
16 Feb 99
Memo from GySgt O_ stating Applicant attached to RS Orlando from 980813 - 980913

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		971122 - 971201	COG

Period of Service Under Review:

Date of Enlistment:  971202		Date of Discharge:  990224

Length of Service (years, months, days):

	Active:   01  02  23
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  10+		AFQT:  64

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (5) 		Conduct:  4.3 (5)

Military Decorations:  None

Unit/Campaign/Service Awards:  NUC, Rifle Marksman Badge, Pistol Marksman Badge

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:

990212:	Counseled for deficiencies in performance and conduct  [failure to obey a lawful order, specifically, on 10 Feb 99, failed to comply with modified conditions of liberty letter by failing to check-in with DNCO at 1800 and 1900 as required].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

990216:	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 than honorable conditions.  The Applicant admitted guilt to the following violations of the UCMJ, Article 92: did without authority, on or about 23 January 1999, associate with J_ W_, in violation of an order not to have contact with her; and violation of UCMJ, Article 107:  did without authority on or about 23 December 1998, with intent to deceive, make a false statement regarding contact with J_ W_.

990223:	GCMCA [Commander, Navy Region Northwest, Silverdale, WA] 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 990224 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 Applicant’s claim that his morals should mitigate his misconduct is not corroborated by the records and documentation reviewed by the Board.  On 990216, the Applicant 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, that he understood the elements of the offenses, and that he was guilty 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 than honorable conditions.  Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity is evident 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.  Relief not warranted.

The Applicant 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.  Representation at a personal appearance hearing is recommended but not required.

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 92, failure to obey a lawful general order; and Article 107, false official statement.

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