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

FOR OFFICIAL USE ONLY

 ex-SSGT, USMC
Docket No. MD05-00701

Applicant’s Request

The application for discharge review was received on 20050308.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions).  The Applicant requests 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 from the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051020.  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 4 to 1 that the character of the discharge shall not change.  The discharge shall remain Under Other Than Honorable Conditions by reason of separation in lieu of trial by court-martial.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“My discharge was inequitable because it was based on one isolated incident in 99 months of service with no other adverse action.

My rank reduction was inequitable because it was based on one isolated incident in 99 months of service with no adverse action.  Respectfully request board members to restore rank to SSgt, on DD-214.”

Representative submitted no issues.

Documentation

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

Character Reference ltr from W_ R. R_, former Sergeant USMC, not dated
Character Reference ltr from D_ M. W_, Staff Sergeant, USMC, not dated
Character Reference ltr from W_ E. W_ Jr., Captain, USMC retired, not dated
Character Reference ltr from M. C. M_, Captain, USMC, dated April 28, 2003
Character Reference ltr from D_ J. R_, Sergeant, USMC, not dated
Letter from Deputy Director, Assistance and Investigations Division, Inspector General of the Marine Corps, dated October 7, 2003
Applicant’s DD Form 214
Applicant’s service record on CD
Decision from Department of Veterans Affairs for service connected compensation, dated July 12, 2004 (10 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive: USMCR (DEP)	19950209 - 19950402	COG
	Active:   USMC	19950403 - 19981012	HON
		USMC	19981013 - 20030226	HON

Period of Service Under Review:

Date of Enlistment:  20030227		Date of Discharge:  20030702

Length of Service (years, months, days):

Active:    00  04  06
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  28

Years Contracted:  4

Education Level:  13				AFQT:  50

Highest Rank:  SSgt				MOS:  6046

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  NA*				Conduct:  NA*

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  National Defense Service Medal w/1*; Sea Service Deployment Ribbon w/2*; Navy and Marine Corps Achievement Medal w/3*; Meritorious Mast (2), Meritorious Unit Commendation; Marine Corps Good Conduct Medal w/1*

*Not Available

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:

030227:	Reenlisted this date for a term of 4 years.

030508:	Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 90: In that Staff Sergeant K_ C.. N_, U.S. Marine Corps, Recruiting Station Atlanta, Georgia, Sixth Marine Corps District, Parris Island, South Carolina, having received a lawful command from Major C_ N. H_, U.S. Marine Corps, his superior commissioned officer, then known by the said Staff Sergeant K_ C. N_, U.S. Marine Corps, to be his superior commissioned officer, to “conduct prospecting activities, make appointments, conduct interviews, enlist applicants into the Delayed Entry Program, and conduct other activities prescribed in Volume I Guidebook for Recruiters, and execute all orders issued by superiors’ or words to that effect, did, at or near Recruiting Station Atlanta, on or about 23 April 2003, willfully disobey the same.

030514:	Charges referred to special court-martial

030610:	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 90: In that Staff Sergeant K_ C. N_, U.S. Marine Corps, Recruiting Station Atlanta, Georgia, Sixth Marine Corps District, Parris Island, South Carolina, having received a lawful command from Major C_ N. H_, U.S. Marine Corps, his superior commissioned officer, then known by the said Staff Sergeant K_ C. N_, U.S. Marine Corps, to be his superior commissioned officer, to “conduct prospecting activities, make appointments, conduct interviews, enlist applicants into the Delayed Entry Program, and conduct other activities prescribed in Volume I Guidebook for Recruiters, and execute all orders issued by superiors’ or words to that effect, did, at or near Recruiting Station Atlanta, on or about 23 April 2003, willfully disobey the same.

030612:	Commanding Officer, 6th Marine Corps District, MCRD, Parris Island, 
(Note *)	South Carolina forwarded a letter to the Commanding General, Eastern Recruiting Region/Marine Corps Recruit Depot, recommending approval of Applicant’s request for separation in lieu of trial.  The Commanding Officer recommends that the characterization of service should be other than honorable.  [* Note:  The CO’s letter is dated 12 May 03 but states that it is the “FIRST ENDORSEMENT on SSgt N_’s ltr 5811 10 Jun 03”.  The date is believed to be an administrative error; the correct date would be after the Applicant’s 10 Jun 03 request.] 

030620:	SJA review determined the case sufficient in law and fact.

030620:	GCMCA, Commanding General, Marine Corps Recruit Depot/Eastern Recruiting Region, Parris Island, South Carolina, approved the Applicant's discharge under other than honorable conditions in lieu of trial by court-martial.

Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030702 in lieu of trial by court-martial (A and B) with a service characterization of under other than honorable conditions.  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 (C and D).  

In a signed statement, the Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial.  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 90, willfully disobeying lawful order of superior commissioned officer, which is considered a serious offense by the UCMJ.  Relief denied.

The Applicant’s DD-214 for this period of enlistment contains several administrative errors.  The Applicant’s rank and pay grade at the time of his discharge was Staff Sergeant, E-6.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge therefore, the Commandant, Headquarters USMC, Quantico, VA, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.  

The following is provided for the edification of the Applicant.  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.  The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time.  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 90, willfully disobeying lawful order of superior commissioned officer.

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

D.  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