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

ex-LCpl, USMC
Docket No. MD05-00039

Applicant’s Request

The application for discharge review was received on 20040927.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a documentary record review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050118.  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/MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.6.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “The Reason of this letter is because I would like you to review my case and to make changes on the RE-CODE and Discharge that I have.  I have an Re 4 and I can’t Reenlist on any branch of service if you look in my record you will find that I was a real good Marine I had real good PFT scores all my PME’S were up to date I was the Platoon Sgt the best on the job never had a Page 11 or an NJP or Court Martial before I got to Okinawa.  I loved been a Marine I loved what I did for my county.

My discharge and the RE-code that they gave me were improper and inequitable because it was on one isolated incident 4 years of service with no other adverse action.”

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		980629 - 011116	HON
	Inactive: USMCR(J)		980507 - 980628	COG

Period of Service Under Review:

Date of Enlistment:  011117		Date of Discharge:  030725

Length of Service (years, months, days):

	Active:    01  08  09  (Does not exclude confinement)
	Inactive:  None

Age at Entry:  23			Years Contracted:  4 

Education Level:  12			AFQT:  35

Highest Rank:  Sgt			MOS:  1181

Final Enlisted Performance Evaluation Averages (number of marks):

All FITREPs were available for review

Military Decorations:  None

Unit/Campaign/Service Awards:  REB, PEB, SSDR, NDSM, GCM, MUC, CC

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:

030306:	To pre-trial confinement.

030320:	From confinement, to duty.

030415:	Summary Court-Martial.
Charge I.  Violation of UCMJ, Article 92.
Specification 1:  Violate a lawful general regulation on diverse occasions by engaging in sexual intercourse in the BEQ with LCpl G_.
Specification 2:  Violate a lawful general regulation by having an unduly familiar relationship with LCpl G_.
Charge II.  Violation of UCMJ, Article 134.
Specification 1:  Have sexual intercourse with a woman not his wife.
Specification 2:  Wrongfully house two unregistered females and their boyfriends in his Military Housing Quarters, Camp Foster, Okinawa.
Specification 3:  Committed an indecent assault on LCpl C_, a woman not his wife, by touching her face and leg and attempting to kiss her on diverse occasions, with intent to gratify his sexual desires.
Additional charge: Violation of UCMJ, Article 92.
Specification 1:  Violate a MPO on 030305 by making contact with LCpl G_.
Specification 2:  Violate a lawful order by having a guest of the opposite sex in his room with the door closed.
Findings. To Charge I and all specifications, guilty; To Charge II and specification 1, guilty; to Charge II and specifications 2-3, not guilty; and to the Additional Charge and all specifications, not guilty.
Sentence.  Forfeiture of one-half pay per month for 1 month, restriction for 55 days, reduction to Cpl.

030527:	Charges referred to a Special Court-Martial.
Charge I.  Violation of UCMJ, Article 92.
Specification 1:  Violate a MPO on diverse occasions by wrongfully making contact and coming within 200 feet of LCpl G_.
Specification 2:  Violate a lawful general regulation by having an unduly familiar relationship with LCpl W_.
Charge II.  Violation of UCMJ, Article 134.
Specification 1:  Have sexual intercourse with LCpl W_, a woman not his wife.
				
030529:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

030529:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation and to submit a statement.

030529:	Commanding Officer 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 was the Applicant’s fraternization, violation of a lawful order, and wrongfully having sexual intercourse with a woman not his wife as evidenced by summary court-martial.

030625:	SJA review determined the case sufficient in law and fact and recommended that the Applicant be administratively separated rather than pursue another court-martial for the pending charges.

030630:	GCMCA [CG, 3d FSSG] directed the 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 20030725 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.  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 a summary court-martial for violation of orders and having sex with a subordinate who was not his wife.  Subsequent to the court-martial, the Applicant violated his Military Protective Order with a Lance Corporal and was pending a special court-martial for this violation of the UCMJ and additional charges related to a sexual relationship with another Lance Corporal.  All of these offenses are considered serious offenses under the UCMJ.  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 or under honorable (general) characterization of service.  An upgrade is inappropriate.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

Concerning a change in reenlistment code, 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.  A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  

The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question.  No such inequity or impropriety 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 01 September 2001 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, disobey a lawful order; and Article 134, wrongful sexual intercourse with a woman not his wife.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		Secretary of the Navy 	Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023