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

 ex-LCpl, USMC
Docket No. MD05-00548

Applicant’s Request

The application for discharge review was received on 20050209.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions and the reason for the discharge be changed to “DISCHARGE DUE TO MEDICAL”.  The Applicant requests a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representation from the Disabled American Veterans.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050629.  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. 6419.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “My statement will not fit in item 6 & 14 so I have attached a copy.  Also request that you review my Military Personnel File so that you can see that I have never received a Court Martial nor have I received any non-judicial punishment.  I have also attached a statement from my SNOIC supporting my statement.”

Statement from Applicant:

“To whom it may concern:

The reason I consider my 9yrs 11 months of military service honorable is obvious to me due to the fact that I have already received 2 honorable discharges for the first 8 yrs.  And if you look at my 214’s I have countless awards that someone with a period of dishonorable service would not.  Namely 2 Good Conduct Medals and 2 Achievement Medals.  Despite my depilating back injury, I was more than successful at my job and received countless awards and ranked in the top 3 out of 65 recruiters my last year on recruiting duty.  I always had the service before self attitude and put my job above everything and everybody until the pain from my injury became too much to handle.

Also I would like to discuss the events leading to my discharge from the Marine Corps.  On April 23r 2002 I seriously injured my back during Physical Training with another marine and some trainees we were training and this injury has changed the course of my life giving me extreme chronic pain even after vertebrae in my neck were fused with surgery.  I have tried Physical Therapy and other methods but nothing has relieved the pain with the exception of strong pain medication.  This happened during my first enlistment which was (19990216-20030807)

During the fall of 2003 as the weather changed the pain in my back tripled and I had to take pain medication around the clock and at the same time work 14 hours a day 6 days a week and 6 hours on Sunday which consisted of driving more than half of the time.  (Keep in mind 75% of my job consisted of driving) But when the medication took effect the driving part of the job became the more dangerous part of the job.  When I informed my superiors of this I got no response except for to get back out there and find more enlistees to join the Marine Corps.  This was not only dangerous but also frightening because the effects of painkillers are intoxicating, I’m surprised I did not kill anyone or get a DUI while driving a Government Vehicle, it was so bad at times that I would slur when I talked to people during sales presentations and they would ask me if I had been drinking.

During the investigation of Gysgt H_ I had to do a statement on him for the mistreatment of his marines, I also included a statement going to the District CO about being forced to drive a Government Vehicle while on debilitating pain medication and I am sure this angered a lot of Command Group members.  I could feel the tension in the air when they were around and they didn’t talk to me anymore than they had to.

This injury led to getting put on a medical evaluation board in December 2004.  And while I was on the board and was about 2 weeks from getting my separation date and percentage of disability, I was called in by command group members to be read my rights and to let me know I was being investigated for adultery.  Keep in mind I was sitting at home on medication around the clock.  These charges were not only trumped up but I also knew that the command was questioning people using leading questions but they were also telling these people that I was doing things that I wasn’t.  I was also told later by 2 individuals that not only did they try to get them to make false statements through leading questions, but that 1 person, (the accuser) openly admitted to making false statements on me and was laughing about the whole thing and thought it was funny that I was in trouble.

About a month or so later I was offered Nonjudicial Punishment and was forced to go up to the command headquarters and when I gave them my statement I not only stated that I was not guilty but also that I knew of another Marine that was guilty that they did an investigation on and they knowingly swept it under the carpet.  This made them very angry and they told me that they were not going to NJP me instead they were going to send me up for special courts martial and kept me at the headquarters for a couple of extra days to do odd jobs during this time I was alienated and embarrassed in front of fellow marines and also at the time I ran out of medication.  After complaining about the pain for 36 hours they sent me home.  I was then tired of the games they were playing and was mentally and physically drained from the pain over this period of time so instead of being toyed with and since I knew I was being discharged for my back injury I took the separation in lieu of trial offered to me by Captain C_ my lawyer.

Looking back I would have rather fought my case because I was innocent but I was in too much pain and stress from my injury and I think my lawyer just wanted me to go the route that was easy for him.  Also I was diagnosed with depression stemming from my injury.  If you look at my service record I have never received an NJP or a Courts Martial.  Also, my injury occurred during my first enlistment, while these accusations came about during my second.

Respectfully Submitted,
W_ A D_ (Applicant)”

Additional issues submitted by Applicant’s representative (Disabled American Veterans):

2.  “Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current Other Than Honorable Discharge to that of General Under Honorable Conditions.

The FSM served on active service from February 16, 1999 to May 14, 2004 at which time he was discharged due in Lieu of Trial by Court Martial. With a Meritorious Mast and Certificate of Commendation, Multiple Branch Achievement Medals, and a Good Conduct Medal coinciding in this time frame.

On review of the documentation provided the record the Applicant submitted for review several character and a personal statement regarding his service and the circumstances to justify the change in discharge has he has requested.

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the Applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174D.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the Applicant.”

Documentation

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

Medical board report
Character reference, undated
Certificate of reenlistment, dated August 8, 2003
Honorable discharge certificate, dated August 7, 2003
Applicant’s DD Form 214 (Member 1 and 4)

PART II - SUMMARY OF SERVICE

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

	Active:   USAF		19940623 -  19980622 	HON (Rel ACDU)
	Inactive: USAFR		19980623 -  19980713	To report AcDuTra
	Active:   USAFR(ANG)	19980713 -  19981212	Rel AcDuTra
	Inactive: USAFR		19981213 -  19990204	Discharged*
	Inactive: USMCR(J)		19990205 -  19990215	COG
	Active:   USMC		19990216 -  20030807	HON

*Inferred from subsequent enlistment into USMCR(J)

Period of Service Under Review:

Date of Enlistment:  20030808		Date of Discharge:  20040514

Length of Service (years, months, days):

	Active:   00  09  07
	Inactive:  None

Age at Entry:  27			Years Contracted:  4

Education Level:  12			AFQT:  74

Highest Rank:  Sgt			MOS:  4066/8411

Enlisted Performance Evaluations:  
Performance evaluations were available to the board for the period in question

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM, N&MCAM, AFAM, NDSM(2), NUC, LoA, MM (5), CoC (2), CoA

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:

20040302:	A preliminary inquiry found the Applicant “had an affair with an eighteen year old high school senior named B_ N_ C_, from Baker High School in Mobile, Alabama from October through November 2003…”

20040330:	Commanding Officer recommended Applicant: “…be relieved for cause due to behavior that cannot be tolerated on recruiting duty.  [Applicant], a married man, had inappropriate relations with a high school senior who was eighteen years of age while he was assigned to RSS Mobile, Alabama.  During the time this affair occurred, the female was under the impression that she was an applicant being considered for entry into the Marine Corps.  It was later discovered that she was ineligible for enlistment based on a previous history of suicidal tendencies.  This relationship has caused embarrassment to the Marine Corps and the Recruiting Service.  I have lost all trust and confidence in this Marine.”

20040408:	Charges referred:
Charge I: Violation of the UCMJ. Article 92:
Specification 1: In that Sergeant W_ A. D_ (Applicant), U.S. Marine Corps, Sixth Marine Corps District, Parris Island, South Carolina, did, at or near Recruiting Substation (RSS) Mobile, Alabama, on divers occasions, on or about or between 6 October 2003 and 31 November 2003, violate a lawful general order, to wit: DepO 1100.5 Ch. 2, dated 16 December 1993, by wrongfully engaging in an inappropriate social and sexual relationship with Ms. B_ N. C_, a prospective recruit Applicant.
Specification 2: In that Sergeant W_ A. D_(Applicant), U.S. Marine Corps. Sixth Marine Corps District) Parris Island, South Carolina, who knew or should have known of his duties at Recruiting Substation (RSS) Mobile, Alabama, on or about or between 6 October 2003 and 10 November 2003, was derelict in the performance of those duties in that he negligently failed to follow Applicant screening procedures set forth in the Military Personnel Procurement Manual by not determining Ms. C_’s potentially disqualifying medical conditions, as it was his duty to do.
Charge II: Violation of the UCMJ, Article 134
Specification: 	In that Sergeant W_ A. D_ (Applicant), U.S. Marine Corps, Sixth Marine Corps District, Parris Island, South Carolina, a married man, did, at or near Recruiting Substation (RSS) Mobile, Alabama, on divers occasions, on or about or between 6 October 2003 and 31 November 2003, wrongfully have sexual intercourse with Ms B_ N. C_, a woman not his wife.

20040430:	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.  He also certified that, although requesting a general (under honorable conditions) characterization of service, the least favorable characterization possible and, in fact most likely characterization, is under other honorable conditions.  The Applicant admitted guilt to the following violations of the UCMJ, Article 92: Failure to obey an order and violating Article 134: Adultery.

20040503:	SJA review determined the case sufficient in law and fact.

20040503:	Commanding General, Marine Corps Recruit Depot/Eastern Recruiting Region, Parris Island, SC, determined that Applicant had no potential for further service, that separation in lieu of trial by court-martial was in the best interest of the service, and directed discharge under other than honorable conditions by reason of conduct triable by courts-martial.

20040528:	Commanding General, Marine Corps Recruit Depot/Eastern Recruiting Region, Parris Island, SC. approved the Applicant’s relief for cause and recommended the removal of his AMOS of 8411. 

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040514 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.  Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline. The Applicant’s service record is marred by the Applicant’s admission of violating an order/regulation and committing adultery.  In a signed statement, the Applicant requested an administrative discharge in lieu of a trial by court-martial.  On 20040429, the Applicant requested a general (under honorable conditions) discharge, but certified his understanding that an under other than honorable conditions discharge was most likely.  He consulted with counsel and was fully advised of the implications of his request.  The Applicant understood that if discharged under other than honorable conditions, it might deprive him of virtually all veterans' benefits based upon his current enlistment, and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received therefrom may have a bearing.  The Applicant stated he understood the elements of the offenses with which he was charged.  He admitted he was guilty of violating Article 92 of the UCMJ, failure to obey an order and Article 134 of the UCMJ, adultery.  Further, the summary of service clearly documents that the Applicant was separated in lieu of trial by court-martial.  No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged. Relief denied.

The Applicant alleges that the charges referred against him were “trumped up” and that his command threatened to prefer the charges to special court-martial only after the Applicant plead his innocence and accused the command of “knowingly [sweeping similar charges] under the carpet” on another Marine who had committed adultery.  The Applicant further implies that his discharge is ultimately the result of his command’s retribution over his statement to the District Command Officer regarding the Applicant being “forced to drive a Government Vehicle while on debilitating pain medication.” The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was not guilty of the charges to which he admitted guilt or that his subsequent administrative discharge was improper of inequitable.  Relief denied.

For the Applicant’s edification, DoD disability regulations do not preclude a disciplinary separation.  SECNAVINST 1850.4E stipulates that separations for misconduct take precedence over potential separations for other reasons.  Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record.  Relief denied.

Issue 2.  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 was marred his admission of violations of Articles 92 and 134 of the UCMJ.  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.

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 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), 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, failure to obey an order/regulation.

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