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

 ex-LCpl, USMC
Docket No. MD02-01272

Applicant’s Request

The application for discharge review, received 020903, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a personal appearance hearing discharge review before a traveling panel closest to Bakersfield, CA.  The Applicant did not designate a representative on the DD Form 293.  In the acknowledgement letter to the Applicant, he was informed that the Naval Discharge Review Board (NDRB) did not travel, all personal appearance hearings are held in the Washington, D.C. area.  The NDRB also advised that the Board first conducts a documentary review prior to any personal appearance hearing.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 030612.  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.  Respectfully request that my “Other than Honorable” discharge be changed to “Honorable”.

During my tour of duty, in the United States Marine Corps, I performed my duties to the utmost of my ability; I was given excellent to outstanding evaluations; Letters of Citation for my devotion to duty including my off duty participation in toys for Tots, Boy Scouts and other civic related functions.

With all of this in mind, I was accused of sexual wrongdoings, and cleared by courts martial and NIS investigations.  I was finally separated from the Marine Corps for removing a page 11 from my service jacket and for indecent language.  

I did not have possession of m service jacket s I was in the Brig at the time awaiting courts martial and the page 11 that was in question was in the possession of the base career planner.  The indecent language charge was also incorrect and a statement from Sergeant Major H_ E. B_ III was made in regards to it.

With the above facts listed above and the documents provided with this request, I respectfully request that my discharge be upgraded to “Honorable” and all statements in my records showing the “Other than Honorable” discharge be removed from my records and that I be re-enlisted in the Marine Corps with all time counted as active duty, and that I be re-instated to my former paygrade (Sgt). 

I desire a records review of my request and if a favorable decision cannot be made, I desire a personal hearing before a traveling panel.

Documentation

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

Recommendation of NAM for Application (Oct 17, 1994)
Letter of Thanks from RADM E.L. W_, USN, dtd Aug 1, 1994
Letter of Appreciation from CO, Marine Aviation Logistics Squadron 11, dtd Nov 14, 1994
Letter of Thanks from RADM E.L. W_, USN, DTD Apr 14, 1994
Character Reference letter from S_ E. M_, dtd May 30, 1995
Character Reference letter from M_ D. M_, SSGT, USMC
Character Reference letter from K_ R. M_, SSGT, USMC
Character Reference letter from D_ N. S_, SSGT, USMC, dtd May 30, 1995
Letter of Appreciation from Boy Scouts of America, dtd Feb 17, 1995
Letter of Nomination for Aviation Ordnanceman of Year, signed by M. J. L_, SSGT, USMC
Character Reference letter from M.W. E_, SSGT, USMC
Character Reference letter from R_ N. M_
Certificate of Appreciation, Support of MAWTS-1 Weapons and Tactics Instructor Course 2-95 
Letter of Appreciation from C- A_, MALS-11 Key Volunteer Coordinator, dtd Nov 15, 1994 w/First Endorsement, dtd Nov 18, 1994
Sierra Judicial Circuit Special Court-Martial (Stipulation of Expected Testimony from Sergeant Major H_ E. B_, USMC) signed by the Applicant on June 10, 1996
Military Protection Order issued to Applicant on Mar 18, 1996
Criminal Investigation Report (2 pages) dtd Mar 25, 1996
1stLt E_, Legal, MCAS El Toro, ltr to Capt P_, dtd Apr 8, 1996, regarding an incident involving Applicant
Copy of a Page 11 pertaining to Applicant 

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		890524 - 911224	HON
					850605 – 890523	HON
	Inactive: USMCR(J)		840611 - 850604	COG

Period of Service Under Review:

Date of Enlistment:  911225		Date of Discharge:  960627

Length of Service (years, months, days):

	Active:   04  06  03(Doesn’t exclude confinement)
	Inactive:  None

Age at Entry:  25			Years Contracted:  4 (1, 1, 4 month extensions)

Education Level:  12			AFQT:  54

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:  NUC, MUC, GCM(2), NDSM, SSDR, OSSR, LoA(2)

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:

911225:	Reenlisted for term of 4 years at MALS-31, MAG31, 2ND MAW, MCAS, Beaufort, SC.

930210:	Counseled for deficiencies in performance and conduct [substandard performance, while on Ordnance Shop Duty, did not read published orders, failed to follow pertinent orders, made inappropriate logbook entries, and stood post in a haphazard and neglectful manner].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  [Applicant submitted rebuttal statement.]

940111:	Counseled for deficiencies in performance and conduct [deficiencies in his ability to adjust to Marine Corps standards and expectation – specifically about deficiencies in his personal and professional judgement, attention to duty, and interpersonal relations].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

940207:	Counseled by commanding officer that he was not recommended for reenlistment, because of not meeting retention standards and that he would be assigned reenlistment code of RE-3C upon separation.

951122:	Extended for one month.

960118:	Extended for one month.

960131:	Extended for four months.

960326:	Applicant placed in pre-trial confinement.

960405:	Charge Sheet:  Violation of UCMJ, Article 128.
Specification: Assault.
Violation of UCMJ, Article 134.
Specification 1-2: Unlawful entry.
Specification 3: Indecent assault.
Specification 4: Indecent language.
Specification 5: Indecent assault.
		 Violation of UCMJ, Article 108.
		 Specification:  Dispose of government property.
		 Violation of UCMJ, Article 121.
		 Specification:  Larceny.
		 Violation of UCMJ, Article 134.
		 Specification:  Alter a public record.
		
960617:	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 134: Indecent Language and violation of the UCMJ, Article 121: Larceny of Military Property.

960617:	SJA review determined the case sufficient in law and fact.

960617:	GCMCA [Commander, marine Corps Air Bases Western Area] directed Applicant separation in lieu of trial by court-martial, 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 960627 with an 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, 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.  In the Applicant’s issue statement to the Board he denies guilt of the same charges that he plead guilty to in his request for separation in lieu of trial by court-martial.  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.   The documentation provided by the Applicant does not mitigate his misconduct sufficient to warrant relief.  Relief denied.

The Board’s regulations limit its review to a determination on the propriety and equity of the discharge.  The NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  Relief is therefore 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 121, larceny; and Article 134, indecent language.

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