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

FOR OFFICIAL USE ONLY

 ex-Pvt, USMC
Docket No. MD05-00926

Applicant’s Request

The application for discharge review was received on 20050427.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050819.  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 and reason for discharge shall not change.  The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to the commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application.

“I, C_ D. W_ (Applicant), was court-martialed in December of 2003.  As punishment I was confined for four (4) months and reduced to E-1.  The prosecution offered a pretrial agreement and I accepted under the influence that after my punishment was served I would finish my contract with the Marine Corps.  Instead I served my punishment, and was punished further by receiving an other than honorable discharge.  It doesn’t’ seem right that my court-martial affected my separation, when separation wasn’t mentioned in my punishment.”

Documentation

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

Judge’s sentence from record of trial, page 24

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	20001216 – 20010805	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20010806		Date of Discharge:  20040827

Length of Service (years, months, days):

Active:    03  00  22  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:   None
	Confinement:		   101 days

Age at Entry:  17 (Parental Consent)

Years Contracted:  4

Education Level:  12				AFQT:  88

Highest Rank:  LCpl				MOS:  4066

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (1)				Conduct:  4.3 (1)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Navy and Marine Corps Overseas Service Ribbon (2), National Defense Service Medal, Rifle Sharpshooter Badge

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:

031223:	Special Court Martial:
	Charge I: violation of the UCMJ, Article 92:
	Specification 1: In that LCpl C_ D. W_ (Applicant), USMC, on active duty, did at Okinawa Japan, between or about May 2003 and August 2003, violate a lawful general order, to wit: paragraph 7.b. (3), MARCORBASESJAPANO 5300.1C of 22 October 2002, by wrongfully finding private employment at a bar or establishment which features the sale or service of alcoholic beverages to the Japanese public.
	Specification 2: In that LCpl C_ D. W_ (Applicant), USMC, on active duty, did at Okinawa Japan, between or about May 2003 and August 2003, violate a lawful general order, to wit: paragraph 8.a, MARCORBASESJAPANO 5300.1C of 22 October 2002, by wrongfully finding private employment in the Japanese economy without obtaining the appropriate approval via his chain of command from the Commanding General, MCB, Camp Smedley D. Butler.
	Specification 3: Dereliction of duty.  (No further information found in service record.)
	Charge II: violation of the UCMJ, Article 107:
	Specification 1: In that LCpl C_ D. W_ (Applicant), USMC, on active duty, did at Okinawa Japan, on or about 19 July 2003, with intent to deceive, make to Investigator M_ T. G_, Criminal Investigations Division, an official statement, to wit: “I work there (i.e., Club Pyramids) on a volunteer basis and I do not receive any money,” or words to that effect, which statement was totally false, and was then know by the said LCpl W_ (Applicant) to be so false.
	Specification 2: In that LCpl C_ D. W_ (Applicant), USMC, on active duty, did at Okinawa Japan, on or about 4 August 2003, with intent to deceive make to Investigator M_ T. G_, Criminal Investigations Division, an official statement, to wit: “I have never gotten paid for bouncing,” or words to that effect, which statement was totally false, and was then known by the said LCpl W_ (Applicant) to be so false.
	Specification 3: False official statement.  (No further information found in service record.)
	Charge III: violation of the UCMJ, Article 128:
	Specification 1: In that LCpl C_ D. W_ (Applicant), USMC, on active duty, did at Okinawa Japan, on or about 5 July 2003, commit an assault upon Lance Corporal M_ T. L_, USMC, by kicking him in the head with a means likely to produce death or grievous bodily harm, to wit: a shoe.
	Specification 2: Aggravated assault.  (No further information found in service record.)
	Specification 3: Assault consummated by a battery.  (No further information found in service record.)
	Specification 4: Aggravated assault.  (No further information found in service record.)
	Specification 5: Assault consummated by a battery.  (No further information found in service record.)
	Specification 6: In that LCpl C_ D. W_ (Applicant), USMC, on active duty, did at Okinawa Japan, on or about 12 July 2003, unlawfully grab Corporal I_ E_ E_, USMC, about the neck with his arms and hands.
	Specification 7: Assault consummated by a battery.
	Specification 8: In that LCpl C_ D. W_ (Applicant), USMC, on active duty, did at Okinawa Japan, on or about 19 July 2003, commit an assault upon Lance Corporal E_ C. R_, USMC, by dragging the said LCpl R_ up a flight of stairs by his collar with a means likely to produce death or grievous bodily harm, to wit: causing the said LCpl R_’s head to repeatedly strike concrete steps.
	Specification 9: Assault consummated by a battery.  (No further information found in service record.)
	Specification 10: Aggravated assault.  (No further information found in service record.)
	Findings: to Charge I and specification 1, thereunder, guilty; Charge II specifications 1 and 2, thereunder, guilty; Charge III and specifications 1, 6 and 8, thereunder, guilty.  Charge I, specifications 2 and 3, withdrawn;   Charge II, specification 3, withdrawn; Charge III, specifications 2, 3, 4, 5, 7, 9, and 10 withdrawn.
	Sentence:  Confinement for 4 months, forfeiture of $767 per month for 4 months, reduction to E-1.
	CA 040618: Sentence approved and ordered executed.

040305:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to commission of a serious offense.  The factual basis for this recommendation was receiving a special court-martial on 031225 for violation of the UCMJ Articles 92, 107, and 128.

040305:	Applicant advised of rights and, having consulted with counsel, elected to include written statements to the Commanding General in rebuttal to his proposed separation and to obtain copies of the documents used to support the basis for the separation.  [Note: Applicant and witness dated this document as 040405 but Commanding Officer's recommendation letter of 040305 references the fact that the Applicant was notified and acknowledged his rights on this date.]

040305:	Commanding Officer, Headquarters and Service Battalion recommended Applicant’s discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  Commanding Officer comments:  "This behavior [CO referring to charges and specifications of Applicant's special court-martial] is a significant departure from the conduct expected of a Marine.  Private W_ (Applicant) does not exemplify the Marine Corps values of honor, courage and commitment.  He traded his loyalty to the Marine Corps by assaulting fellow Marine at a Japanese club.  By his actions, Private W_ (Applicant) has demonstrated that he has no potential for further military service."

040601:	GCMCA (Commanding General, Marine Corps Base, Camp Smedley D. Butler, Okinawa, Japan) recommended to the Deputy Commandant of the Marine Corps for Manpower and Reserve Affairs (M&RA) the Applicant's discharge under other than honorable conditions by reason of commission of a serious offense.  Commanding General requested Staff Judge Advocate review of the package for its legal sufficiency.  [SJA review was not found in service record.]  Commanding General comments:  "Private W_'s (Applicant's) flagrant disregard for military authority by seeking off-duty employment, his attempt to hide this fact by making false statements, and his utter disregard for the safety and welfare of his fellow Marines, as evidenced by his accepting payment in order to inflict injury upon them, are abhorrent acts which cannot be tolerated.  These acts constitute a significant departure from the conducted expected of a Marine."

040708:	Applicant acknowledged that he was eligibile but not recommended for promotion to PFC for the month of August because of pending administrative separation.  Applicant chose not to make a statement.

040730:	Deputy Commandant of the Marine Corps (M&RA) 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 20040827 by reason of misconduct due to the commission of a serious offense (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).

The Applicant contends that his discharge was improper as his administrative separation was not part of the sentence adjudged at his special court-martial.  The Applicant is advised that the decision to administratively separate a service member is made independently of the findings of a special court-martial.  Whenever a Marine is involved in misconduct due to the commission of a serious offense, commanders may process the Marine for separation with an other than honorable characterization of service if that offense warrants a punitive discharge per Appendix 12 of the Manual for Courts-Martial for the same or closely related offense (B).  Administrative separation processing may occur whether or not punitive/nonpunitive action is taken against the Marine.  The Board, in the absence of contradictory evidence, considered the findings of the special court-martial of 20031223 to be fact.  The Board did not find any evidence of a pre-trial agreement guaranteeing completion of the Applicant's service contract following punishment.  His command's decision to separate him is therefore substantiated by the Applicant's violation of UCMJ Article 92 Failure to obey order or regulation, Article 107 False official statements, and Article 128 Assault (consummated by battery).  Accordingly, relief on this basis is denied.

The following is provided for the edification of the Applicant.  Normally, a procedural impropriety or inequity must have occurred during this discharge process for the Board to permit relief.  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 the Marine Corps.  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 on this basis.

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 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 Failure to obey order or regulation, Article 107 False official statements, and Article 128 Assault (consummated by battery).

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