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

FOR OFFICIAL USE ONLY

ex-LCpl, USMC
Docket No. MD05-00953

Applicant’s Request

The application for discharge review was received on 20050511.  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 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 two isolated incidents in 11 years of service with no other adverse action.  After I retained my own legal counsel the trial was relocated out of state hence I lost legal representation and defense counsel provided by military was in no way current on my case and whenever contacted had to be briefed by myself so he would remember me and my case, therefore I felt there was an unfair advantage on the prosecution side of this case which I could not afford to defend since the venue change was made.”

Documentation

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

Applicant’s DD Form 214
Business Card for C_’s Eye View Investigations
Private Detective Registration card, state of Georgia, expires August 31, 2005 [front and back]
Private Detective Registration card, state of Georgia, expires June 30, 2005 [back]
Georgia State Motor Vehicle Report, dtd November 4, 2003
Certificate from Investigative Professional Association of Georgia, Inc., dtd April 8, 2005 
Certificate from Investigative Professional Association of Georgia, Inc., dtd April 8, 2005
Certificate of membership from National Association of Investigative Specialists, expires July 1, 2006

PART II - SUMMARY OF SERVICE

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

	Inactive: USMCR (DEP)	19820830 - 19830314		COG
	Active:   USMC		19830315 - 19860830		HON
		   USMC		19860831 - 19910814		HON

Period of Service Under Review:

Date of Enlistment:  19910815		Date of Discharge:  19941230

Length of Service (years, months, days):

Active:    03  04  16  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  27

Years Contracted:  4

Education Level:  12				AFQT:  59

Highest Rank:  SSgt				MOS:  5831

Final Enlisted Performance Evaluation Averages (number of marks): Enlisted performance reports were available to the Board for review.

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Good Conduct Medal with 3 Stars, Meritorious Mast, National Defense Service Medal, Letter of Appreciation, Meritorious Unit Commendation with 2 Stars

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/VOL DIS (IN LIEU OF TRIAL BY COURT MARTIAL), authority:  MARCORSEPMAN Par. 6419

Chronological Listing of Significant Service Events:

910815:	Reenlisted this date for a term of 4 years.

xxxxxx:	Applicant’s handwritten statement. [Undated]

940922:	Finding of facts and recommendations from investigation conducted in regards to circumstances connected with alleged misconduct of Applicant.

940923:	Commanding Officer, Recruiting Station Atlanta forwarded an investigation to Commanding Officer, Sixth Marine Corps District with recommendation for a Staff Judge Advocate review in contemplation of a trial by courts martial and Applicant be relieved of duties pending disciplinary action.

940926:	Commanding Officer, Marine Corps Recruiting Station, Atlanta, GA requests Commanding General, Marine Corps Recruiting Command relieve Applicant for cause due to personal misconduct and that Applicant be transferred immediately.  The Applicant’s misconduct includes a sexual relationship with a female poolee, adultery and sexual harassment towards a female Lance Corporal during her assignment as a temporary recruiter and a false official statement.

941003:	Commanding Officer, 6th Marine Corps District requested the Commanding General, Marine Corps Recruit Depot/Eastern Recruiting Region, Parris Island, SC administratively relieve the Applicant for cause due to his personal misconduct.  Applicant’s misconduct includes alleged charges of adultery, sexual harassment by making unwanted sexual advances toward a recruiter aide, and conduct prejudicial to the good order and discipline of the Armed Forces.  A request for legal services has been forwarded to SJA, requesting that charges be brought against Applicant for violation of appropriate articles of the Uniform Code of Military Justice.  A general or special court-martial is anticipated as a result of the alleged charges.

941014:	Commanding General, Marine Corps Recruit Depot/Eastern Recruiting Region informed Commanding General, Marine Corps Recruiting Command of the Applicant’s relief of duties as a recruiter for cause and the that is MOS of 8311 has been voided.  Legal action pending.
941230:	DD Form 214: Applicant discharged with a under other than honorable conditions by reason of conduct trial by courts martial (request for discharge for the good of the service).

Service Record Book did not contain the Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19941230 by reason of separation 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 available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).  The Board presumed regularity in the conduct of governmental affairs (E).

In the absence of a complete discharge package, the Board presumed regularity of governmental affairs.  Therefore, the Board presumed the Applicant requested discharge to escape trial by court-martial, had the elements of the offense(s) for which he was charged fully explained by counsel, that he was guilty of the offense(s) and that he had a complete understanding of the negative consequences of his actions.  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.

The Applicant contends that his discharge was based “on two isolated incidents in 11 years of service with no other adverse action.”  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 allegations of adultery, failure to follow an order/regulation and sexual harassment.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable.  Relief denied.

The Applicant implies that his Government appointed defense counsel was inadequate and that that it precipitated his decision to request separation in lieu of trial.  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 afforded proper legal representation.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  However, even if the Applicant could show he was not afforded appropriate legal representation, it would neither amount to a justification nor to a defense for the Applicant’s own misconduct.  Relief denied.  

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered.  The Applicant provided employment licensing and training documentation as well as a Motor Vehicle Report as evidence of his post-service conduct.  The Applicant's efforts need to be more encompassing than those provided.  For example, the Applicant could have produced a verifiable employment record, documentation of community service and further certification of non-involvement with civil authorities, in order for consideration for clemency based on post-service conduct.  At this time, the Applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in his characterization of discharge.  Therefore, no relief will be granted.  

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 P1900.16D), effective 
27 Jun 89 until 17 Aug 95.

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 or Article 134, adultery.

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.

E.  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.

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