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

 ex-LCpl, USMC
Docket No. MD05-00547

Applicant’s Request

The application for discharge review was received on 20050202.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable or general/under honorable conditions.  The Applicant requests a documentary record discharge 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 20050608.  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.  “My discharge was inequitable because it was based solely on one incident.  I spent 9 years in good standing with the Marine Corps.  I am asking that my Full Record be reviewed and my discharge be upgraded.  I have been out for 3 years with no incidents involving the police.  I am currently in IRAQ in support of our troops.”

Documentation

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

Seventy-seven pages from Applicant’s service record

PART II - SUMMARY OF SERVICE

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

	Inactive: USMCR(J)		910530 - 910922	COG
	Active:   USMC		910923 - 950120	HON
		   USMC		990121 - 990611	HON

Period of Service Under Review:

Date of Enlistment:  990612		Date of Discharge:  010611

Length of Service (years, months, days):

	Active:    02  00  00
	Inactive:  None

Age at Entry:  28			Years Contracted:  2

Education Level:  12			AFQT:  77

Highest Rank:  SSgt			MOS:  5952/2841

Final Enlisted Performance Evaluation Averages:  Enlisted performance reports were available to the Board for review.

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM, NDSM, NUC, LoA (4), MM (6), LoC

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:

990612:	Applicant reenlisted for 2 years.

010517:	Applicant notified of intended recommendation for discharge by reason of misconduct due to the commission of a serious offense.  The least favorable characterization of service which you may receive is under other than honorable conditions.

010523:	Applicant advised of rights and having consulted with counsel, 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.

010524:	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 your violations of the following articles of the Uniform Code of Military Justice: Article 80, Article 84, Article 92, Article 107, Article 123, Article 134.  

010524:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 80:
	Specification 1: Attempt to effect the unlawful enlistment of B. T. S_ on 980915, knowing he was ineligible for enlistment because he had not passed the Armed Services Vocational Aptitude Battery.
	Specification 2: Attempt to effect the unlawful enlistment of B_ P_ on 981104, knowing he was ineligible for enlistment because he had not passed the Armed Services Vocational Aptitude Battery.
	Charge II: violation of the UCMJ, Article 84:
	Specification 1: Effect the enlistment of A_ M. R_ as a Private in the United States Marine Corps on 990827, knowing that he was ineligible for enlistment because he had not passed the Armed Services Vocational Aptitude Battery.
	Specification 2: Effect the enlistment of R_ R_ as a Private in the United States Marine Corps on 000801, knowing that he was ineligible for enlistment because he had not passed the Armed Services Vocational Aptitude Battery.
	Specification 3: Effect the enlistment of M_ E. S_ as a Lance Corporal in the United States Marine Corps on 010131, knowing that he was ineligible for enlistment because of criminal convictions occurring subsequent to his last period of active service.
	Charge III: violation of the UCMJ, Article 92:
	Specification 1: Derelict in the performance of duty in that he willfully failed to disclose the 000902 criminal conduct of Lance Corporal M_ E. S_ on 000915.
	Specification 2: Derelict in the performance in that he willfully failed to disclose the 001030 criminal conduct of Lance Corporal M_ E. S_.
	Specification 3: Derelict in the performance in that he willfully failed to disclose the 010124 criminal conduct of Lance Corporal M_ E. S_.
	Specification 4: Derelict in the performance of duties in that he willfully failed to disclose the 010128 criminal conduct of Lance Corporal M_ E. S_.
	Specification 5: Fail to obey a lawful general order on 010205, to wit: Marine Corps Order P1100.72B, paragraph 1105.3 dated 971210, by wrongfully having conversations about the criminal case of M_ E. S_ with Mr. J_ D_ S_, a defense attorney for M_ E. S_.
	Specification 6: Fail to obey a lawful general order on 010205, to wit: Marine Corps Order P1100.72B, paragraph 1105.3 dated 971210, by wrongfully initiating contact with Judge T_ V_ on behalf of Lance Corporal M_ E. S_.
	Specification 7: Fail to obey lawful order on 010221, by wrongfully instructing Lance Corporal M_ E. S_ to transport S_ K_ in his privately owned vehicle.
	Charge IV: violation of the UCMJ, Article 107:
	Specification 1: With intent to deceive, sign an official document on 980827, to wit: USMEPCOM Form 714A-E which was false in that the Applicant’s signature in block 23 was forged.
	Specification 2: With intent to deceive, sign an official document on 980830, to wit: USMEPCOM Form 714A-E which was false in that the Applicant’s signature in block 23 was forged.
	Specification 3: With intent to deceive, sign an official document on 981104, to wit: USMEPCOM Form 714A-E which was false in that the Applicant’s signature in block 23 was forged.
	Charge V: violation of the UCMJ, Article 121:
	Specification 1: Steal gasoline, military property, a value of $34.00, by wrongfully using a government credit card to purchase gasoline for his personal use on 010217.
	Specification 2: Steal gasoline, military property, a value of $32.45, by wrongfully using a government credit card to purchase gasoline for his personal use on 010217.
	Specification 3: Steal gasoline, military property, a value of $35.25, by wrongfully using a government credit card to purchase gasoline of his personal use on 010221.
	Specification 4: Steal gasoline, military property, a value of $30.00, by wrongfully using a government credit card to purchase gasoline of his personal use on 010221.
	Specification 5: Steal gasoline, military property, a value of $32.75, by wrongfully using a government credit card to purchase gasoline of his personal use on 010223.
	Charge VI: violation of the UCMJ, Article 123:
	Specification 1: Falsely make the signature of A_ M. R_ to a USMEPCOM Form 714A, which said writing if genuine, apparently operate to the legal harm of another on 980827.
	Specification 2: Falsely make the signature of A_ M. R_ to a USMEPCOM Form 714A, which said writing if genuine, apparently operate to the legal harm of another on 980830.
	Specification 3: Falsely make the signature of B_ P_ to a USMEPCOM Form 714A, which said writing if genuine, apparently operate to the legal harm of another on 981104.
	Specification 4: Falsely make the signature of M_ E. S_, on a check number 634, in the amount of $125.00 and made payable to B_ C. B_ that was issued by Navy Federal Credit Union to M_ E. S_ , which would, if genuine, impose a legal liability on another on 010214.
	Charge VII: violation of the UCMJ, Article 134:
	Specification 1: Wrongfully endeavor to influence the testimony of Private First Class M_ D. K_ as a witness before Captain J_ J. O_, a person known to be the investigating officer by telling PFC K_ to testify falsely concerning PFC K_’s taking the Armed Forces Vocational Aptitude Battery for other potential Applicants to the U.S. Marine Corps on 010223.
	Charge VIII:  violation of the UCMJ, Article 134:
Specification 1: Wrongfully solicit Private First Class M_ D. K_ to effect an unlawful enlistment by asking him to take the Armed Forces Vocational Aptitude Battery for an unnamed Applicant to the U.S. Marine Corps on 980827.
Specification 2: Wrongfully solicit Lance Corporal C_ W. P_ to effect an unlawful enlistment by asking him to take the Armed Forces Vocational Aptitude Battery for R_ R_ on 000715.
Charge V, and all specifications thereunder, Charge VI, specification 4, charge VIII, specification 2 were withdrawn.
	Finding: to Charge I and the specifications thereunder, guilty.
	Charge II and specification 1 and 2 thereunder, guilty.
	Charge III and specifications 5, 6, and 7 thereunder, guilty.
	Charge IV and specifications 1, 2, and 3 thereunder, guilty.
	Charge VII and specifications1 and 2 thereunder, guilty.
	Charge VIII and specification 1 thereunder, guilty.
Charge II and specification 3; Charge III and specifications 1-4; Charge VI and specifications 1-3 thereunder, not guilty.
	Sentence: Forfeiture of $1287.00, reduced to E-5.
	CA action 010531:  Sentence approved and ordered executed except for the reduction to pay grade E-5 is suspended for 6 months.

010530:	Applicant’s statement.

010604:	SJA review determined the case sufficient in law and fact.

010606:	Commander, MCRD/WRR, San Digeo 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 20010611 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 Applicant contends that his discharge characterization is inequitable because it is based on one incident, with nine years in good standing in the Marine Corps.  An under other than honorable conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service is marred by a summary court-martial conviction for his violations of Articles 80, 84, 92, 107 and 134 of the UCMJ from August 1999 to February 2001.  The Applicant’s Article 84 infractions are considered serious offenses.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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 Naval Service.  The NDRB is authorized to consider 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.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided any post-service documentation for the Board to consider.  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.  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 31 August 2001). 

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 84, effecting unlawful enlistment.

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