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

FOR OFFICIAL USE ONLY

 ex-Pvt, USMCR
Docket No. MD05-01389

Applicant’s Request

The application for discharge review was received on 20050816.  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 20061004.  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 General (Under 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 to the Board:

“1.)  I feel the discharge is unjust do to the nature of the incident.  I served 60 months without any other adverse action.  I was not the one committing the infractions, merely observing.
  2.)  The charges I faced were because I was present and had knowledge of the actions of a superior NCO.  I was influenced by a Sgt. to ignore my duties as a Cpl.
  3.)  During the course of my court-martial I was not awarded a discharge, and was confined for 30 days, and reduced to Pvt.  I then was put before an administration board by a Commanding Officer who had no prior knowledge of my character and I never served under.  The Adjutant for the squadron was the one who explained the course of action to me, at which time I explained to her that I rated one reserve commissioned officer on my adimin.  Sep. Board. Due to the fact that I was involuntarily recalled and serving in a reserve unit.  Not only did she deny me the reserved commission officer, but selected her husband, a warrant officer, to serve on my board.  I felt this was a conflict of interest due to her being married to him and his ability to have prior knowledge of the situation and possible influence on his decision, I have enclosed a copy of Marine Corps separation and Retirement Manual, Chapter 6, Section 3, supporting my request to the adjutant.”

Applicant’s Remarks:

“Sir or Madam, 

Enclosed is an application for an upgrade of my discharge from the Marine Corps.  During my six years in the Marines I was a Military Policeman.  This correction to my records will help when I choose to continue this career path in the civilian community.  Also enclosed is copies of both of my DD-214, which will reflect my awards and decorations during my service to the Marines.  I chose this route instead of submitting numerous copies of awards and citations.  I hope this is sufficient and easier for you.

Thank you for your time and consideration, 

[signed] J_ A. L_ (Applicant)”

Documentation

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

Applicant’s DD Form 214  (Member 4)
Applicant’s DD Form 214  (Member 4)
Marine Corps Separation and Retirement Manual Chapter 6 (4 pages)
Ltr from Staff Sergeant F_ A. P_, Security Department, undated (2 pages)
Character Reference ltr from J_ P_ II, SSgt, USMC, dtd May 17, 2004
Character Reference ltr from K_ R_, undated
Character Reference ltr MSgt K_ R. M_, dtd August 13, 2004
Character Reference ltr from D_ C. S_, GySgt, undated
Character Reference ltr from R_ W_, GySgt, USMCR, undated
Character Reference ltr from J_ A. M_, SSgt, dtd April 20, 2004 (2 pages)
Character Reference ltr from J_ W. M_, dtd August 16, 2004 (2 pages)
Character Reference ltr from W_ E. H_, SSgt, undated
Character Reference ltr from J_ A_, Cpl, dtd August 11, 2004
Character Reference ltr from J_ A. G_, dtd August 17, 2004
Character Reference ltr from B_ W. P_, dtd August 17, 2004
Character Reference ltr from A_ E. D_, undated
Character Reference ltr from B_ S. S_, August 17, 2004 (3 pages)
Character Reference ltr from R_ L_, dtd August 14, 2004
Character Reference ltr from J_ A. L_, dtd August 15, 2004
Character Reference ltr from M_ T. H_, undated
Character Reference ltr from A_ R. F_, LCpl, undated
Character Reference ltr from D_ K. M_, undated
Character Reference ltr from J_ W. M_, Cpl, undated
Character Reference ltr from J_ C_, Sgt, undated
Character Reference ltr from R_ J. L_, Cpl, USMC, undated
Character Reference ltr from R_ Y_, LCpl, undated
Character Reference ltr from J_, B. P_, dtd August 18, 2004
Letter of Recommendation from H_ A. P_, dtd October 21, 2005 (2 pages)
Letter of Recommendation from R_ W_, GySgt, dtd October 19, 2005
Letter of Recommendation from S_ C. C_, dtd October 11, 2005 (2 pages)
Letter of Recommendation from D_ C. S_, GySgt, dtd November 7, 2005
Letter of Recommendation from Trooper V_ T. L_, dtd November 20, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive: USMCR (DEP)	19971113 – 19980817		COG
	Active:   USMC 		19980818 – 20020817		HON

Period of Service Under Review:

Date of Enlistment:  20020906		Date of Discharge:  20040925

Length of Service (years, months, days):

Active:    02  00  19  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  24 days

Age at Entry:  22

Years Contracted:  *

Education Level:  12				AFQT:  62

Highest Rank:  Cpl				MOS:  5811

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.7 (3)				Conduct:  4.7 (3)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Armed Forces Reserve Medal with Mobilization Device.

* Applicant involuntarily ordered to active duty in support of Operation Enduring Freedom for 187 days.

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.6.

Chronological Listing of Significant Service Events:

020817:	Applicant released from Active Duty with reserve obligation term date of 051112.

020830:	Applicant ordered to Presidential Recall.  Involuntarily ordered to active duty from your residence in support of Operation Enduring Freedom (MOB) as prescribed in executive order 13223, under the provisions of title 10, USC, SEC 12302 and determined as exempt from the five year cumulative service limit per title 38, USC, Chap 43 (USERRA), for the period 06 September 2002 to 11 March 2003 (187 Days).

020906:	Applicant reported to MCAS Cherry Point, NC for active duty.

030212:	Modification to Presidential Recall.  Purpose of modification is to change the Applicant’s end duty date to 040311.

040110:	NCIS Investigation initiated following a report that the Applicant was riding in a Military Police patrol car with another Marine who accidentally shot himself.

040301:	Request for Legal Services.  Commanding Officer, HQHQRON, MCAS Cherry Point, NC, request appropriate legal services for a special court-martial in the case of CPL A_ J. L_ (Applicant).

040305:	Modification Presidential Recall.  Purpose of modification is to change the Applicant’s end duty date to 040511.

040331:	Preferral of charges.

040610:	Special Court-Martial Pretrial Agreement, Sentence Limitation.  Applicant agrees to punitive discharge, confinement, forfeitures, reduction, other lawful punishments as adjudged.  Applicant agrees to submit a voluntary appellate leave request within ten days of the date of trial.  

040816:	Modification Presidential Recall.  Purpose of modification is to change the Applicant’s end duty date to 041112.

.  
040824:	Special Court-Martial.
	Charge I: violation of the UCMJ, Article 92:
	Plea: Guilty; Finding: Guilty
	Specification 1: Dereliction of Duty.
	Plea: Guilty; Finding: Guilty
	Specification 2:  Dereliction of Duty.
	Plea: Guilty; Finding: Guilty
	Charge II:  violation of the UCMJ, Article 108:
	Plea: Not Guilty; Finding: Withdrawn
	Specification: Damage of a government vehicle.
	Plea: Not Guilty; Finding: Withdrawn
	Charge III:  violation of UCMJ, Article 134:
	Plea: Guilty; Finding: Guilty
	Specification 1:  Unlawful taking of a deer.
	Plea: Guilty; Finding: Guilty
	Specification 2:  Unlawful taking of a deer.
	Plea: Not Guilty; Finding: Withdrawn
	Specification 3:  Unlawful taking of a deer.
	Plea: Guilty; Finding: Guilty
	Specification 4:  Unlawful taking of a deer.
	Plea: Not Guilty; Finding: Withdrawn
	Specification 5:  Unlawful taking of a deer.
	Plea: Guilty; Finding: Guilty
	Sentence: Forfeiture of $750.00 per month for 2 months, reduced to E-1, 30 days confinement.
	CA action 050218: The sentence is approved and ordered executed.

040824:	Applicant to confinement.

Undated:	Applicant notified of intended recommendation for discharge by reason of misconduct due to the commission of a serious offense with a characterization of service under other than honorable conditions.  The factual basis for this recommendation was the Applicant’s established misconduct as evidenced by his special court-martial conviction.

Undated:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board and to obtain copies of the documents used to support the basis for the separation.

040826:	Commanding Officer, Headquarters and Headquarters Squadron recommended to the Commanding General, Marine Corps Air Station, Cherry Point, that the Applicant be discharged by reason of misconduct due to commission of a serious offense with a characterization of service of other than honorable conditions.  The CO’s letter stated that the notification package was delivered in person to the Marine and that the Marine did return the acknowledgement of rights.  

040901:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to commission of a serious offense, that such misconduct warranted separation, and recommended discharge with a general (under honorable conditions) characterization of service.

040917:	Applicant from confinement.

040917:	Commanding Officer, Headquarters and Headquarters Squadron, Marine Corps Air Station, Cherry Point, forwards the recommendation of the administrative discharge board to the Commanding General, Marine Corps Air Bases, Eastern Area, recommending approval of the board’s recommendations.

040917:	SJA review determined the case sufficient in law and fact.

040917:	Commander, Marine Corps Air Bases, Eastern Area, directed Commanding Officer, Reserve Support Unit, Cherry Point, that the Applicant be discharged by reason of misconduct due to commission of a serious offense, with a characterization of general (under honorable conditions). 

040925:	 DD-214:  Applicant discharged this date by reason of misconduct with a characterization of general (under honorable conditions).

041103:	Modification Presidential Recall.  Purpose of modification is to change the Applicant’s end duty date to 040925.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040925 by reason of misconduct due to the commission of a serious offense (A and B) with a service characterization of general (under 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).  

During the review of Applicant’s records, the Board discovered that the Applicant’s administrative separation was not in full compliance with applicable regulations.  The Applicant contends that he did not have a properly convened administrative discharge board.  In the course of reviewing the Applicant’s service record, transcript of the administrative discharge board, and the Applicant’s testimony, the Naval Discharge Review Board discovered two procedural deficiencies in the conduct of the Applicant’s administrative discharge board.  The Applicant’s administrative discharge board was comprised of a Lieutenant Colonel, a Chief Warrant Officer-3, and a Master Sergeant.  All three members were active duty Marines, with no Reserve Marines on the board.  According to the MARCORPSEPMAN 6315 1.b, if the respondent (appearing before an administrative discharge board) is a member of a Reserve component, the board shall include at least one Reserve commissioned officer as a voting member.  In addition, if an under other than honorable discharge is authorized, all board members shall be commissioned officers.    The Applicant was processed for discharge according to MARCORSEPMAN 6210.6, commission of a serious offense, for which an under other than honorable characterization of service is authorized.  In the Applicant’s case, his administrative discharge board should have had at least one Reserve commissioned officer as a voting member and should have been comprised of all commissioned officers.  However, while the composition of the Applicant’s administrative discharge board was improper, the NDRB did not conclude that the rights of the Applicant were prejudiced.  At his special court-martial, the Applicant plead guilty to violations of UCMJ Articles 92 (2 specifications of dereliction of duty) and 134 (3 specifications of unlawful taking of a deer). Violations of Articles 92 and 134 are considered serious offenses for which punitive discharges are authorized by a special or general courts-martial.  Following the special court-martial, the Applicant’s Commanding Officer recommended that the Applicant be separated with a characterization of service of under other than honorable conditions.  The Applicant consulted with counsel and elected to appear before an administrative discharge board which recommended that the Applicant be separated with a characterization of service of General.  Upon consideration of the Applicant’s admitted misconduct, special court-martial conviction, and the Commanding Officer’s recommendation, the NDRB concluded that it was unlikely that an administrative discharge board, comprised of one at least one Reserve commissioned officer and all commissioned officers, would have recommended an honorable characterization of service.               Relief denied.

The Applicant also contends that the membership of the administrative discharge board was improper in that one of the board members was the husband of the squadron Adjutant.  On a “REQUEST FOR LEGAL SERVICES” form dated 20040301, requesting appropriate legal services for the Applicant’s Special Court-Martial, the squadron Adjutant is listed as the “Officer who will inform the accused of the sworn charges and receipt for sworn charges”.  The Chief Warrant Officer-3 serving as a member of the Applicant’s administrative discharge board has the same last name as the squadron Adjutant and it is presumed that they are married.  During the administrative discharge board proceedings, the Recorder, a lawyer certified in accordance with Article 27 (b), UCMJ, had Voire Dire, and challenged the Chief Warrant Officer-3.  The President of the administrative discharge board determined that the Chief Warrant Officer-3 was fair and impartial and he was not excused.  Therefore, relief on this basis is not warranted.   

The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  

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 additional evidence related to this 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 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 (dereliction of duty) and Article 134 (General Article).

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