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

   ex-MAJ, USMC
Docket No. MD03-00177

Applicant’s Request

The application for discharge review, received 20021106, 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.  Subsequent to the application, the Applicant obtained representation by the Veterans of Foreign Wars.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20031003.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  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. 4102 & SECNAVINST 1920.6B.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues as stated

“1.  MY DISCHARGE WAS INEQUITABLE BECAUSE IT WAS BASED ON ONE ISOLATED INCIDENT IN FIFTEEN YEARS OF HONORABLE SERVICE WITH NO OTHER ADVERSE ACTION.”

“2.  THE DISCHARGE IS IMPROPER BECAUSE THERE IS NO RECORD OF ANY INCIDENT INSTIGATING THE DISCHARGE.  IN JULY 2002 I REQUESTED AN UNDELETED REPORT OF SEPARATION AND RECEIVED ONLY A COPY OF MY DD214.  SINCE THERE IS NO RECORD OR HISTORY OF ANY INCIDENT PRECEDING MY DISCHARGE I REQUEST THAT MY DISCHARGE BE UPGRADED TO GENERAL (UNDER HONORABLE CONDITIONS).”  

“3.  THIS REQUEST IS BECAUSE OF A NEED FOR VA ASSISTANCE AND DESIRE TO BE AVAILABLE IN CASE OF RECALL DUE TO WAR.”

Additional issues submitted by Applicant’s counsel/representative (Veterans of Foreign Wars):

“4.  We concur with the Applicant’s contention and reason to upgrade his Under Other Than Honorable Discharge.  We refer this case to the Board for their careful and compassionate consideration and request the Applicant’s discharge be reviewed for upgrading his discharge to General.”

Documentation

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

Copy of DD Form 214, Service - 2

PART II - SUMMARY OF SERVICE

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

     Active:   None
     Inactive: USMCR (Scholarship ROTC)     820830 – 841207     To Accept Commission

Period of Service Under Review:

Date of Appointment:  841208		Date of Discharge:  000407

Length of Service (years, months, days):

	Active:   15  04  00
	Inactive:  None

Age at Entry:  21			Years Contracted:  6

Education Level:  16

Highest Rank:  MAJ

Final Officer Performance Evaluation Averages:  All officer performance reports were available to the Board for review.

Military Decorations:  NCM (w/1 Star), NAM (w/1 Star)

Unit/Campaign/Service Awards:  SSDR (2 Stars), NUC (w/1 Star), MUC (w/1 Star), AFEM (w/1 Star)

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. 4102 & SECNAVINST 1920.6B.

Chronological Listing of Significant Service Events:

961029:	Charge Sheet:  NJP for violation of UCMJ, Article 111:  DUI - on or about 17 Sep 96, near the main gate and Bachelor Officers Quarters, physically control a vehicle, to wt:  a Ford Bronco, while impaired by 0.10 grams of alcohol per 210 liters of breath or greater as shown by chemical analysis; violation of UCMJ, Article 133:  Conduct unbecoming an officer - on or about 17 Sep 96, did or omitted to do certain acts, to wit:  bent the windshield wiper of a vehicle and told military police he did not do it; refused to follow instructions of military police; and stated to Patrolman A_ S_ that, “it would be a good fight between us,” or words to that effect; which conduct was unbecoming an officer and gentleman.
Awarded punitive letter of reprimand and restriction for 30 days.  Appealed on 961105 but denied on 961127.

961030:	Punitive Letter of Reprimand issued to Applicant.

961211:	Commander, U.S. Marine Forces, Pacific recommended to Commandant of the Marine Corps that Major L_ (Applicant) not be required to show cause for retention.

000106:	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.  The Applicant admitted guilt to the following violations of the UCMJ, Article 92 (4 specs – orders violation) and Article 133 (2 Specs – conduct unbecoming an officer and gentlemen.

000110:	Commanding General, Marine Corps Recruit Depot/Western Recruiting Region, San Diego, CA, recommended to the Secretary of the Navy via the Commandant of the Marine Corps “that Major L_ (Applicant) request be approved and that he (be) separated under other than honorable conditions.”

000225:	Commandant of the Marine Corps recommended to the Assistant Secretary of the Navy (M&RA) that Applicant be discharged under other than honorable conditions by reason of resignation in lieu of trial by court-martial.  Commandant provided a brief chronology of the case as follows:

	a.  Major L_ (Applicant), a married man, engaged in misconduct involving computer pornography and in a sexual relationship with a female civilian.  From June 1999 to September 1999, Major L_ (Applicant) used his Government computer to access the Internet and download pornographic material involving adult women.  Major L_ (Applicant) also created an Internet website.  On the website, Major L_ (Applicant) identified himself as a Marine Corps officer, and he included a link to the official Marine Corps website.  Major L_ (Applicant)’s website also included contemptuous and derogatory matter regarding the President of the United States, nude photographs of women, obscene jokes, and a photograph of and poems by his paramour.  The contemptuous matter involving the President of the United States depicted Ms M_ L_ with semen on her face and the reference “Got C_.”  In addition to the Internet pornography, Major L_ (Applicant) used his Government computer to store pictures of himself engaging in sexual intercourse and oral sodomy with his paramour. The relationship with his paramour lasted from January 1999 to September 1999.
	b.  Prior to this incident, Major L_ (Applicant) was the subject of two officer misconduct cases.  In 1990, Major L_ (Applicant), then a first lieutenant, received nonjudicial punishment for using enlisted Marines to paint his personal vehicle.  In 1997, Major L_ (Applicant) was required to show cause for retention at a Board of Inquiry after he received nonjudical punishment for driving under the influence of alcohol with property damage and soliciting a military policeman to fight.  The Board of Inquiry recommended retention.
	c.  Major L_(Applicant) is currently pending an Article 32, UCMJ, pre-trial investigation of preferred charges for violating Articles 99 (contempt toward officials); 92 (orders violation); 125 (sodomy); 133 (conduct unbecoming an officer and gentleman); and 134 (adultery), UCMJ.
	d.  On 6 January 2000, Major L_ (Applicant) submitted his request for separation in lieu of trial by court-martial.  Major L_ (Applicant) admits that he violated Article 92 (orders violation) and 133 (conduct unbecoming an officer and gentlemen) as outlined above.  Although Major L_ (Applicant) requests that he be separated with an Honorable or General (Under Honorable Conditions) characterization of service, he acknowledges that he may be separated with an Other Than Honorable characterization of service.

000320:	Assistant Secretary of the Navy (M&RA) approved the Applicant’s resignation in lieu of trial by court-martial with a characterization of service as under other than honorable conditions.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20000407 under other than honorable conditions in lieu of trial by court-martial (A, B, and C).  The Board presumed regularity in the conduct of governmental affairs (D).  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 (E and F).

Issues 1& 2.  The Applicant opines, his “discharge was inequitable because it was based on one isolated incident in fifteen years of honorable service with no other adverse action;” and his “discharge is improper because there is no record of any incident instigating the discharge. … Since there is no record of history of any incident preceding my discharge I request that my discharge be upgraded to General (under honorable conditions).”  After a very careful review of the Applicant’s record, the board vehemently disagrees with the Applicant’s assertions.  The record reveals the Applicant was the subject of two separate officer misconduct cases prior to the incidents that caused him to seek separation from the Marine Corps to escape trial by court-martial.  The record reflects that the Applicant was charged with and voluntarily admitted guilt to violating Articles 92 and 133, UCMJ (orders violation) and (conduct unbecoming an officer and a gentleman) respectively.  The discharge was proper and equitable.  Relief denied.

          Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country.  It must be noted most Marines serve honorably and therefore earn honorable discharges.  In fairness to those Marines, commanders and separation authorities are tasked to ensure undeserving Marines receive no higher characterization than is due.  The NDRB respects the fact the Applicant had periods of faithful service during his fifteen years, but his overall service is equitably characterized as being performed under other than honorable conditions.

Issue 3.  The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board.  There is no requirement or law that grants a discharge recharacterization based solely on the issue of obtaining Veterans' benefits.  This issue does not serve to provide a foundation upon which the Board can grant relief.  Additionally, concerning the Applicant’s “desire to be available in case of recall due to war,” 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.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment/reinstatement.  A request for waiver is normally done only during the processing of a formal application for reentry/reenlistment into the military through a recruiter.  Relief is therefore denied.

Issue 4.  The Applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  Normally, to permit relief, an error or inequity must have existed during the period of service in question.  No such error or inequity occurred during the Applicant’s tenure.  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.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent 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, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that should have been provided to receive consideration for relief, based on post-service conduct.  The Applicant provided no such evidence of post-service conduct.  Relief not warranted.

The applicant is reminded that he is eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his 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.  Chapter 4, Paragraph 4102 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E, effective 18 Aug 1995), PROCESSING FOR SEPARATION.

B.  Secretary of the Navy Instruction 1920.6B (ADMINISTRATIVE SEPARATION OF OFFICERS) effective 13 Dec 1999 until Present establishes policies, standards and procedures for the administrative separation of Navy and Marine Corps officers from the naval service in accordance with Title 10, United States Code and DoD Directive 1332.30 of 14 Mar 97.

C.  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, Articles 92 and 133.

D.  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.  

E.  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.

F.  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