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

 ex-LCpl, USMC
Docket No. MD02-01240

Applicant’s Request

The application for discharge review, received 020821, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  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 030522.  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, as submitted

1.  Discharge was improper and unfair because of:

1)  My Board hearing was on September 11, 2001 (9/11) the DA in civilian court was on my side!  She was not able to be reached due to the tradgedy & Gov’t offices closing down.  Verdict was that, had she been reached the final vote would have been in my favor.  That was discussed afterwards.

2)  I was charged in civilian court in September of 2000.  The Marines knew what happened, did nothing and kept me in the service until October 2001.  Right before my EAS, so I could not receive an Honorable discharge.  Why keep me I the service for an entire year with no punishment, than kick me out.

3)  This was a civilian matter and handled in civilian court.  Had this happened on Base this would not have been a crime.

4)  This is a misdemeanor!!  I received a misdemeanor and was discharged with an Other Than Honorable Discharge.

5)  I had received good Pro’s & Con’s prior to my discharge, along with a good remark.

To whom it may concern,

I was recently discharged from the Marine Corps in October of 2001, one week before my EAS from a situation that had happened in September of 2000, over one year prior to my EAS.
I stayed with a family in Anaheim, California while I was stationed at Camp Pendleton.  I was good friends with their son with whom I had worked with while we were both still in the service.  He was discharged and I was still in.
The family also had a younger daughter who was 16 years old and living at home and had come right out in the open and told me that she was infatuated with me and wanted to marry me.  She was not of legal age at that time.  I told her that it wasn't going to happen between us.
She had been in and out of jail for a couple of years by this point and was a heavy drug addict.  We had talked about this before that nothing was going to happen with us.
She accused me of raping her and sent me to jail.  When my command heard about this they did not demote me or do any administrative paper work on my case.  I was non-recked for promotion and that is it.  Along with maintaining a room on base.
The lawyer and DA had specifically set the court date for November 13, 2001 after I would be discharged from the military with an honorable discharge.  So the case would not interfere with my discharge or military service.  It was specifically for that reason.  I was not convicted of any crime or of any injustice before my discharge.  My command simply discharged me on October 6, 2001, 13 days before my EAS due to the original charges and not conviction.
The DA interviewed the daughter and stated that in fact she had a sexual relationship with me, and her friend told the investigator that as well.  I did admit to having sex with her more than once on different occasions.  Her friend told the investigator the same thing.
The original charges were forcible rape with a minor, which is a felony.  I was never convicted of these charges, instead the charges were lowered by the DA and after extensive interviews with the witness and her friends.  The witness was in jail at that time during her interview for her own misconduct.  She did admit to willfully having intercourse with me before.
My command never waited to see the outcome of the charges but discharged me.  The final outcome was that I was convicted with a misdemeanor and had to do 30 days in jail with the charges dropped to unlawful sex with a minor.
I was wrongfully charged.  The net effect was that I had served virtually four honorable years in the Marine Corps and was discharged with an Other than Honorable discharge due to a misdemeanor.
I believe that the board had made a wrong decision in the case of my discharge.  The admin hearing occurred on September 11, 2001 and was not delayed despite one of the original board members leaving due to the tragedy, to go to their family for an emergency.  I believe had the DA been able to talk to the board the outcome would have been in my favor.  The DA was called to verify that the charge was consensual sex with a minor, but they were unable to reach due to all of the Government businesses being evacuated with everyone leaving work.  The board members had earlier come to a decision of 1-1-1.  One of the board members had stated that she would have voted in my favor if the DA was able to verify that the charge was consensual sex with a minor.  That I would have a general discharge.  I believe had the DA been able to talk to the board the outcome of the hearing would have been in my favor.
I think that everyone's mind was preoccupied with the tragedy and they made a rash decision to discharge me.  I had a woman MSgt. who supervised me come to testify on my behalf as a good dependable worker I was and how this hearing just didn't seem right.  Along with her were other character witnesses who testified on my behalf.
Along with this discharge there is another circumstance that I believe I need to discuss.  That is that the Marines diagnosed me with a very painful and serious back condition.  This incident occurred after boot camp and progressed throughout my military term.  The condition is known as sciatica and disk herniation and bulging.  I have MRI's to prove that I have this disability.  I was constantly on light duty for four years and on a medical board throughout my four years of training.  I received epidurals at Balboa Hospital to alleviate the pain.  The Marines kept me in and didn't discharge me, even though I was recommended for discharge numerous amounts of times.  Then unfairly discharged me and left me with no benefits for medical attention.  This is a very serious condition.

Sincerely, (Signed by Applicant)

Documentation

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

Copy of DD Form 214 (Copy #4)
College schedule dtd Aug 5, 2002
Police report with proof of misdemeanor dtd May 15, 2002
Letter of enrollment at Microsoft training school dtd Dec 5, 2001
Superior Court of CA, County of Oceanside Probation Terms dtd Nov 13, 2001
Character Reference ltr from Rev. C_ S_, dtd Aug 29, 2001
Volunteer letter from church secretary, C_ S_, dtd Aug 20, 2001
Volunteer letter from church pastor, Rev. D_ W_, dtd Sep 26, 2002
Volunteer letter from physically handicapped camp at Onondaga Community College dtd Sep 19, 2002
Last Pro and Con marks dtd Sep 26, 2001
Character Reference ltr from N_ M_, Trainer at Computer Education Services Corporation
Prior application (DD 293) 
Superior Court of CA, County of Oceanside Case, dtd Mar 5, 2002
Service Record pages, including Administrative Discharge package and the civilian court proceedings (158 pages)
Onondaga Community College enrollment letter dtd Sep 7, 2001
Photos
Lighthouse Psychological Services ltr concerning Applicant dtd May 29, 2001
Pro and Con marks dtd Jul 3, 2001
Applicant’s father’s ltr to the General dtd Sep 10, 2001
DMV License Record transcript
Character Reference ltr from Sgt. K_ J. S_ dtd Oct 1, 2001
Character Reference ltr from Sgt. J_ L. P_
Character Reference ltr from Rev. D_ W_ dtd Apr 30, 2002
Character Reference ltr from Rev. C_ S_ dtd Apr 12, 2002
Character Reference ltr from J_ L_ dtd Sep, 2001

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		970915 - 971019	COG

Period of Service Under Review:

Date of Enlistment:  971020		Date of Discharge:  011002

Length of Service (years, months, days):

	Active:    03  11  13
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  13			AFQT:  58

Highest Rank:  Cpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.5 (10)		Conduct:  4.4 (10)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Expert Badge (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:

990810:	NJP for violation of UCMJ, Article 92:  On 3 Aug 99 was in violation of BO 11101.38, para 5.d, having an unauthorized bottle of Liquor (38% by volume) in Room #310, Bks 1398, which was found during a field day inspection.
Awarded forfeiture of $100.00 per month for 1 month (suspended for 6 months), restriction and extra duties for 7 days (suspended for 6 months).  Not appealed.

990820:	Arrested at 0150 by Oceanside Police Department for DUI, was released by civil authorities on the Quick Release Program at 1319, 20AUG99.  BAC pending.

990909:	Applicant acknowledged eligibility but not recommended for promotion to Cpl for month of Sep 99 promotion period because of recent NJP.

990919:	Counseled for deficiencies in performance and conduct.  [Disobeying lawful order, Article 92, and Falsifying a Statement, Article 107; on 000728 Applicant cited by NCOIC for driving vehicle on a military installation without base privileges due to a DUI.  Also on 000628, submitted BAH Own Right package.  In that package Applicant knew the Bn CO’s policy concerning room-mates were: (1) the room-mate is in receipt of BAH Own Right, or (2) the room-mate is applying for BAH Own Right.  Applicant’s letter stated that Cpl M_ K. N_  would be his room-mate.  However, Applicant never lived with Cpl N_.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

990924:	Applicant acknowledged eligibility but not recommended for promotion to Cpl for month of Oct promotion period because of recent NJP.

991025:	Applicant acknowledged eligibility but not recommended for promotion to Cpl for month of Nov promotion period because of recent NJP.

991122:	Applicant acknowledged eligibility but not recommended for promotion to Cpl for month of Dec promotion period because of recent NJP.

991217:	Applicant acknowledged eligibility but not recommended for promotion to Cpl for month of Jan promotion period because of recent NJP.

000920:	Applicant’s Base driving privileges reinstated.

010604:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by pending civil trial for statutory rape and forcible rape of an intoxicated person, both felony charges.

010605:	Applicant’s civilian lawyer (M_ L_) advised command that he was representing Applicant on a criminal charge of statutory rape, next on calendar on Nov 13, 2001, which is past his due date of departure from the Marines, and the District Attorney has offered to reduce the charge to a misdemeanor in exchange for a plea of guilty and this was done in consideration of review of facts of the case.  Civilian lawyer requested that Applicant be allowed to honorably discharge following his four year obligation.

010608:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

010719:	Commanding Officer, Communications Company, Hqtrs and Service Battalion, 1st FSSG recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  The basis for this recommendation is that Cpl O_ (Applicant) is being charged with two serious civil offenses; forcible rape of an intoxicated person and unlawful sexual intercourse with a minor.
	During his appearance in the Riverside County courthouse, Cpl O_’s case was delayed until after his EAS (Nov 13, 2001).  This was done in exchange for SNM’s plea of guilt.  At the hearing, SNM (Applicant) was offered two choices:  pleading guilty to a felony at that time with no jail time, or delaying his trial until after his EAS, at which time he would plead guilty to a misdemeanor and serve 180 days in jail.  Cpl O_ chose the later.  Cpl O_ ’s guilt is not in question, he admittedly gave alcohol and had sex with an intoxicated minor.  I recommend that Cpl O_  be given a separation designator of GKQ1, a reenlistment code of RE-4, and that his characterization of service be other than honorable.

010727:	Commanding Officer, Hqtrs and Service Battalion, 1st FSSG 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 is due to Applicant’s pending two serious civil offenses.  One offense being forcible rape of an intoxicated person and the other, unlawful sexual intercourse with a minor, both felony changes.

010911:	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 recommended discharge under other than honorable conditions.

010925:	SJA review determined the case sufficient in law and fact.

010925:	GCMCA [Commander, 1st FSSG] advised the Commandant of 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 011002 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 discerned no impropriety or inequity in the conduct of the Applicant’s Administrative Discharge Board.  Relief denied.

Issue 2.  The Board discerned no impropriety or inequity in the fact that the Applicant’s chain of command did not process the Applicant for administrative separation until months after the serious offense occurred.  This issue does not provide a basis for relief.  Relief denied.

Issues 3 and 4.  A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a Marine.  The Applicant’s service was marred by award of nonjudicial punishment (NJP) on one occasion and the commission of a serious offense on another occasion.  A civil or military conviction is not necessary to be processed for separation for the commission of a serious offense.  The Board found no inequity or impropriety in the fact that the Applicant’s serious offense and subsequent discharge under other than honorable conditions was later determined to be a misdemeanor in a civilian court.  Marines may be discharged under other than honorable conditions for serious offenses, such as disobeying an order, that would not even be considered a crime in a civilian court.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service.  The Applicant’s claim that his offense was handled in civilian court and that therefore the military can or should not take administrative action for the same offense is totally without merit.  The Applicant states that “Had this happened on Base this would not have been a crime.”  This statement is false.  Relief denied.

Issue 5.  The Board found that the positive aspects of the Applicant’s service do not mitigate his misconduct sufficiently to warrant an upgrade to his discharge.  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 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.

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