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

 ex-Pvt, USMC
Docket No. MD02-01134

Applicant’s Request

The application for discharge review, received 020806, 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 030602.  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: GENERAL (UNDER HONORABLE CONDITIONS)/IN LIEU OF TRIAL BY COURT-MARTIAL, authority: MARCORSEPMAN Par. 6419.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  I had a pretrial agreement to have a summary court martial, where I agreed to plead guilty, and when my command found out that after the court-martial my EAS is up.  They denied me the right to have the Summary Court Martial.  I stayed 60 days past my EAS. -I asked my lawyer why I was not having my trial, his response was "the command does not want you to have an honorable discharge and you'll be here until they figure out what to do with you".  Guidance from senior Staff NCO told me to write to my congressmen.  After writing to my congressmen and getting a response only then I was discharged on general conditions.  I feel I was denied my rights by not being able to have my Summary court martial.  The Command and I had a contractual agreement that they broke.  I wish my discharge to be up graded to Honorable on this basis.

2.  Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Naval Discharge Review Board of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we continue to support the contentions as set forth by the Applicant, in his request that he be given the opportunity to upgrade his General (Under Honorable Conditions) Discharge to a Honorable Discharge.

The (FSM) entered the Marine Corp on November 16, 1996 until December 15 2000 a period of only (4) years and (1) month.  During this (FSM) enlistment he was recommended for Summary Court Martial for a continued pattern of willful misconduct.  The (FSM) conduct prior to his separation for the above cited offenses received were unremarkable and contained no negative information- The (FSM) received annual ratings of 4.2 4.3, which appear to be in the excellent evaluation range and are suitable for continued duty and enlistment consideration.  The (FSM) service reflects no NJP Violations until the last year of his enlistment of 1991.  The (FSM) during his last year of service received numerous articles of UCMJ offenses for almost the same offenses, the charges appear to be minor violations but since they are listed, as repeated offenses and show a continued pattern of disobedience to violations of direct orders, he, was issued a Summary Court Martial for his actions.  The (FSM) chose to plead guilty to the stated charges and subsequently accepted the General (Under Honorable Conditions) Discharge In Lieu of Summary Court Martial proceeding.

The (FSM.) now seeks to show the Marine Corp Discharge Review Panel that he had corrected his immature behaviors and his inability to handle the day to day stresses of his life.  The (FSM) feels now he is able to act and perform his daily functions in a manner that is truly positive and he no longer acts or behaves in the negative manner he exhibited while in his military service.

The (FSM) now respectfully request an equitable standard be applied as well as equity in treatment in seeking the boards' approval to afford him the opportunity to receive and an up-grade of his General (Under Honorable Conditions) Discharge to an Honorable Discharge.

The (FSM) feels his military accomplishments of service are a matter of Supreme Honor and Respect he will cherish throughout his lifetime.  The (FSM) also states he had always tried to achieve Honor and Respect during his almost entire term of enlistment of military duty in the Marine Corp.

We respectfully request that the (FSM) be given complete and duly consideration by the board.  We also respectfully request that the board consider each reasonable explanation submitted by the (FSM) who now wishes to seek to correct the mistakes he made in receiving the continued violations of NJP offenses that he charged with and him receiving grading his General (Under Honorable Conditions) Discharge he received in fulfilling his military duty in the United States Marine Corp.

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.

Respectfully,

Documentation

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

Applicant's DD Form 214
Letter from House of Representatives, dated November 2, 2000
Letter to a congress member from Applicant, dated October 25, 2000
Seven pages from Applicant's service record

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		960916 - 961015	COG

Period of Service Under Review:

Date of Enlistment:  961016		Date of Discharge:  001215

Length of Service (years, months, days):

	Active:    04  02 00
	Inactive:  None

Age at Entry:  21			Years Contracted:  4

Education Level:  13			AFQT:  31

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):*

Proficiency:  3.8 (10)			Conduct:  3.6 (10)

Military Decorations:  None

Unit/Campaign/Service Awards:  Letter of Appreciation (2)

Days of Unauthorized Absence:  None

*Marks are from 2 separated evals sheets.

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

GENERAL (UNDER HONORABLE CONDITIONS)/IN LIEU OF TRIAL BY COURT-MARTIAL, authority:  MARCORSEPMAN Par. 6419.

Chronological Listing of Significant Service Events:

980201:	Counseled for deficiencies in performance and conduct.  [Current height/weight standards of the Marine Corps.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990218:	Counseled for deficiencies in performance and conduct.  [Dereliction of duty on 990129.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990330:	NJP for violation of UCMJ, Article 86:
Specification: Failed to go at the time prescribed to PT formation at 0550, 990309.
Violation of UCMJ, Article 92:
Specification: Derelict in performance of duties by falling asleep instead of escorting the civilian contractor on 1050, 990308.
Awarded forfeiture of $589.00 per month for 2 months, restriction for 60 days.  Forfeiture and restriction for 30 days suspended for 6 months.  Not appealed.

990611:	Vacate suspended forfeiture and restriction awarded at CO's NJP dated 990330.

990708:	NJP for violation of UCMJ, Article 86:
Specification: Fail to go at the time prescribed to morning formation 0700, 990603.
Violation of UCMJ, Article 92 (2 specs):
Specification 1: Derelict in performance of duties by falling asleep instead of fixing the Fire Alarm in Bldg 20 on 0525, 990515.
Specification 2: Derelict in performance of duties by improperly fill out a boiler check sheet, and use the time clock on 990611.
Awarded forfeiture of $500.00 per month for 2 months, restriction for 30 days, reduction to PFC.  Not appealed.

990830:	Counseled for deficiencies in performance and conduct.  [Unauthorized absence and disobeying a lawful order.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

991123:	NJP for violation of UCMJ, Article 86:
		Specification: Unauthorized absence 0630-1000, 991119.
		Violation of UCMJ, Article 91:
Specification: Willfully disrespectful to Cpl, in language and deportment by saying, "its not the chief messmans job to worry about the messman but rather it was just to fuck with them," on 1015, 991006
Awarded forfeiture of $400.00 per month for 2 months, restriction for 60 days, reduced to Pvt.  Forfeiture and restriction suspended for 6 months.  Not appealed.

000301:	Applicant submitted a conditional waiver administrative board contingent upon receiving a general (under honorable conditions) discharge.

000620:	Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 91 (4 specs): (1) Willfully disobeyed a lawful order from SSgt to be in formation in the prescribed uniform on 000418, (2) Willfully disobeyed a lawful order from SSgt to be in formation in the prescribed uniform on 000420, (3) Willfully disobeyed a lawful order from SSgt to be in formation in the prescribed uniform on 000519, (4) Willfully disobey a lawful order from SSgt to be in formation in the prescribed uniform on 000523, and Article 92 (2 specs): (1) Derelict in the performance of duties in that he willfully failed to check out a guard radio on 000518, (2) Derelict in the performance of duties in that he negligently failed to check out a guard radio on 000518.

000719:	Additional charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 86: Fail to go at time prescribed to appointed place of duty on 000619, to wit: Marine Barracks, Washington, DC

001109:	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 general (under honorable conditions).  The Applicant admitted guilt to the following violations of the UCMJ, Article 86, 91 and 92.

001211:	SJA review determined the case sufficient in law and fact.

001211:	GCMCA [Commander, Marine Corps Base, 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 general (under 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 001215 with a characterization of general (under 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:  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. A characterization of service of general (under honorable) conditions is warranted when the service member’s conduct constitutes a departure from that expected of a Marine.  The record is void of any evidence that the Applicant was not afforded his right to due process or was illegally held past his EAS.  In accordance with MARCORSEPMAN Par. 1008.1B, a Marine may be involuntarily retained on active duty for purposes of trial, sentence, and punishment.  The Applicant had charges preferred to special court-martial, authorizing involuntary retention, to which he pleaded guilty in order to avoid a court-martial and expedite his discharge.  The Applicant’s service record is further marred by award of non-judicial punishment (NJP) on three separate occasions.  The Applicant’s summary of service clearly reflects the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the Marine Corps, and demonstrated he was unsuitable for further service. An upgrade to honorable conditions would be inappropriate.  Relief denied.  For the Applicant’s edification, Marines separated in lieu of trial by court-martial normally receive a discharge characterization of under other than honorable conditions. 

Issue 2:  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, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.   At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.  Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  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 [91, willfully disobeying SSGT ].

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