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

FOR OFFICIAL USE ONLY

 ex-LCpl, USMC
Docket No. MD05-01392

Applicant’s Request

The application for discharge review was received on 20050811.  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.  Subsequent to the submission of DD Form 293, the Applicant obtained representation from the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060522.  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 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 inadequate, because it was based on an isolated incident in 33 moths of service, for which I was incarcerated in the brig for 39 days.  My record will show that the positives outweigh the negatives in my military career.  I am facing deportation.  If this honorable board will grant my request, I will have a fighting chance to prove that I am a National of the United States, and will be allowed to remain in the country.  Please help.  I have live in the United States for 17 years, and I swore I would die for this country, and my feelings have not changed.  Semper Fi.”

Applicant’s issues, as stated in a letter to the Board dated March 30, 2006:

“As of August 24, 2005, my application for discharge review, has been pending at your office.  I was told that in the letter of acknowledgement of my application that any request of this kind could take up to a year for a decision to be reached.  I am currently in Immigration & Customs Enforcement’s detention and I am in removal proceedings.  It would be of great help to me if I could show that my discharge has been upgraded to an Honorable, or at least an General under Honorable conditions.  Since my discharge in 1995 until 2003, I maintained excellent conduct.  For a period of fourteen months I abused drugs and got myself in trouble with the law and that is why I am here trying to win my Immigration case.  Since I have been in detention I have also maintained an excellent behavior record (proof is available upon request).

I am humbly asking for a brief update on the situation of my application at the present time.  Also I would like to know if it is at all possible the name and address of the American Legion’s attorney assigned to handle my case.

Respectfully Submitted,
[signed]
A_ O_(applicant)”

Applicant’s issues, as stated in an attached undated document to the board:

“Comes now the Respondent, (applicant), at this time to respectfully request that this Honorable Board change his Other than Honorable discharge to Honorable on the following grounds:

1.   Mr.  O_(applicant)’s military career reflects that he is a true Marine.  He received a National Defense Service Medal in 1992, a Good Conduct Medal in 1993, an Overseas Service Ribbon in 1994, he also had first class PFT scores, and was Expert with the M-16 service riffle two years in a row.
2.   After his discharge, he worked and paid his income tax every year.  Attached is his Social Security Statement.
3.   The isolated incident which brought the Other Than Honorable discharge upon Mr.  O_(applicant) was the only thing preventing him from getting an Honorable discharge.  He prays that this Honorable Board would grant him this request so that he would be allowed to remain in the United States, a country he practically grew up in and a country he has grown to love.  A country that he swore he would die for and for which his feeling have not changed.

Attached are letters from Mr.  O_(applicant)’s family which where sent to BICE in support of his application for relief from removal from the United States.

Respectfully Submitted,
[signed]
A_ O_(applicant)”

The Applicant’s representative, the American Legion, submitted no issues for consideration.

Documentation

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

Discharge review brief, undated (2 pages)
Applicant’s DD Form 214
Applicant’s social security statement, dtd August 15, 2005 (4 pages)
Character reference ltr from M_ S_, Applicant’s aunt, dtd April 23, 2005
Character reference ltr from F_ O_, Applicant’s aunt, dtd April 23, 2005
Character reference ltr from D_, Applicant’s cousin, dtd April 23, 2005
Character reference ltr from A_ S_, Applicant’s cousin, undtd
Character reference ltr from T_ L_, Applicant’s cousin, dtd April 23, 2005
Character reference ltr from S_ L_, Applicant’s cousin, dtd April 23, 2005
Applicant’s letter dated March 30, 2006

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19920528 - 19920610	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19920611		Date of Discharge:  19950317

Length of Service (years, months, days):

Active:    02  07  26  (excludes lost time)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:    3 days
	Confinement:		  39 days

Age at Entry:  19

Years Contracted:  4

Education Level:  12				AFQT:  67

Highest Rank:  LCpl				MOS:  6132

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (7)				Conduct:  4.2 (7)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  National Defense Service Medal, Sea Service Deployment Ribbon

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:

920527:	Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

930714:	NJP for violation of UCMJ, Article 121 and 134, 930709 on or about 0200 SNM committed larceny by fleeing from a taxi and withholding payment after the tax driver had taken him to Bks #431.  SNM obtained taxi services under false pretenses when a taxi was hired to transport SNM to Bks #431 and did not pay for services rendered.
	Award:  Forfeiture of $474 per month for 1 month, restriction and extra duty for 45 days.  Not appealed.

930714:	Counseling:  Advised of deficiencies in performance and conduct (Alcohol-related incident, specifically: obtaining taxi service under false pretenses to Bks 431, fleeing from scene and withholding payment, on 930709.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940425:	Counseling:  Advised of deficiencies in performance and conduct (Riding as a passenger in a vehicle with an open container of beer and contributing to the delinquency of a minor.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940509:	Joint Drug and Alcohol Counseling Center Evaluation: Applicant was treated for alcohol dependency in Okinawa and released in January 1994.  Since reporting to command LCpl O_(Applicant) has returned to drinking.  Recommendation:  Administrative separation.

940628:	Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the July 94 Prom Qtr because of pending administrative action against Applicant.  Applicant chose not to make a statement.

940826:	Applicant counseled concerning treatment of drug/alcohol through a VAMEDFAC in conjunction with discharge.  Applicant agreed to extend/remain on active duty for treatment.  Applicant desired to participate in the program.

950127:	Counseling:  Advised of deficiencies in performance and conduct (Having a pet snake in room of barracks 246 on board MCAS Tustin.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950202:	Applicant to unauthorized absence on 950202.

950205:	Applicant from unauthorized absence on 950205 (3 days/IHCA).

950205:	Applicant to confinement.

950308:	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, Charge I:  Article 86. Specs: 1-8, Charge II:  Article 91. Specs: 1-8, Charge III: Article 112a.  Specs: 1-3, Additional Charge I:  Article 86.  Spec: 1, Additional Charge II:  Article 112a.  Specs 1-2.

950314:	SJA review determined the case sufficient in law and fact.

950314:	GCMCA, Commanding General, 3d Marine Aircraft Wing, Marine Forces Pacific, directed the Applicant's discharge under other than honorable conditions by reason of in lieu of trial by court-martial.

950316:	Applicant from confinement.

950317:	Applicant discharged under other than honorable conditions by reason of separation in lieu of trial.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19950317 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 Articles 86, 91 and 112a of the UCMJ.  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 the “postitives [sic] outweigh the negatives” of his military service and that his discharge was the result of an “isolated incident.”  When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as honorable.  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 by three retention warnings, and nonjudicial punishment proceedings for violations of Articles 121 and 134 of the UCMJ. 
The Applicant also admitted guilt to violations of Articles 86, 91 and 112a of the UCMJ.  The Applicant’s violations of Articles 91, 112a and 121 are considered serious offenses.  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 Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant contends that his discharge should be upgraded due to his post-service conduct.  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, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  The Applicant submitted his social security statement and letters of reference.  As of this time, the Applicant has not provided sufficient post-service documentation for the Board to consider.  Relief denied.

The Applicant implies that his discharge should be upgraded to facilitate the Applicant’s desire to avoid deportation.   There is no requirement or law that grants recharacterization solely on the issue of avoiding deportation and this issue does not serve to provide a foundation upon which the Board can grant relief.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  Relief on this basis is 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.  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 91, insubordinate conduct, Article 112a, wrongful use, possession, etc., of a controlled substance or Article 121, larceny.

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