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

FOR OFFICIAL USE ONLY

 ex-LCpl, USMC
Docket No. MD05-01530

Applicant’s Request

The application for discharge review was received on 20050914.  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.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060824.  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 inequitable because it was based on one isolated incident in 6 years of service with no other adverse action.  My unit said they wanted me to get out of the service and if I didn’t I would be court martial for fraud.  The charge for fraud came about because of a travel claim that was submitted by me which was returned with me owing the government money.  Because I did not go through my unit’s chain of command and the number of days on the claim were incorrect, a CID investigation was started because I angered unit’s administrative chief.  The travel was due to my youngest daughter at the age of one-year old who was born prematurely having to be MEDEVAC to San Diego, Ca for surgery which became a 27 day stay.  Because of this, I was not permitted to take my oldest daughter then the age of 5 years old who had to be left in Okinawa, Japan with friends which also caused me to have a very expensive hotel phone bill.  The bill was not for those calls but also calls made to my unit for professional reasons which my chain of command would not reimburse for.  My family and I were not supposed to be in Japan.  Due to lack of caring and negligence of the Naval physicians at Cherry Point Naval Hospital, we were declared fit and able to travel to Japan 8 weeks after having my daughter prematurely who had medical problems at birth and was hospitalized for 6 weeks.  I did not refuse the orders because it would have made me unable to re-enlist when my time came and I wanted to continue to pursue my life-long military career.  The transfer to Japan not only ended my career shortly but also put me and my family in financial hard-ship which my Unit SgtMaj at the time was made aware of an offered no aid.  I would like to an upgrade because my situation was unjust and unfair.  I would also like for my re-enlistment code upgraded so that I can re-enlist if still possible.”
Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 for period of service under review (2)
Applicant’s DD Form 214 for period ending January 16, 1994 (2)
Applicant’s DD Form 215 for period ending January 16, 1994 (2)
Meritorious Mast Certificate dtd November 5, 1991
Certificate of Good Conduct dtd July 15, 1993
Letter from National Personnel Records Center dtd January 7, 2005
Applicant’s Request for Military Records dtd August 4, 2005
Applicant’s and Applicant’s child’s medical records from Pitt County Memorial Hospital, Greenville, NC (86 pgs)
Extracts from Applicant’s service record (87 pgs)
Applicant’s and Applicant’s child’s medical records from Craven Regional Medical Center (320 pgs)

PART II - SUMMARY OF SERVICE

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

	Inactive: USMCR (DEP)	19900322 – 19900617		COG
	Active:   USMC 		19900618 – 19940116		HON
Active:   USMC 		19960412 – 19981113		HON

Period of Service Under Review:

Date of Enlistment:  19981114		Date of Discharge:  20000425

Length of Service (years, months, days):

Active:    01  05  12  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  none
	Confinement:		  none

Age at Entry:  27

Years Contracted:  4 

Education Level:  12				AFQT:  74

Highest Rank:  SGT				MOS:  7041

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):  National Defense Service Medal, Good Conduct Medal with 1 star, Navy Unit Commendation, Overseas Service Ribbon, Certificate of Commendation, Rifle Marksman Badge

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:

981114:	Reenlisted this date for a term of 4 years. 

000210:	NJP for violation of UCMJ, Article 91: Insubordinate conduct by throwing Chevrons at GySgt G_ and exclaiming “I quit” at HQHQRON, MCAS Futenma.
	Violation of UCMJ, Article 108: Destroying government property by breaking the glass out of the door of Bldg 101 at HQHQRON, MCAS Futenma.
	Award:  Reduction to E-4.  Appealed 000210.  Appeal and result of appeal not found in record.

000215:	U.S. MARINE CORPS Criminal Investigation Division, Criminal Investigation Report.

000310:	Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 107 and 132.

000330:	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 her counsel had fully explained the elements of the offenses for which she was charged and that she understood the elements of the offenses.  She further certified a complete understanding of the negative consequences of her actions and that characterization of service may be under other honorable conditions.  The Applicant admitted guilt to the following violations of the UCMJ, Article 107:  In that Corporal D_ D. C_, (Applicant), U.S. Marine Corps, Headquarters and Headquarters Squadron, Marine Corps Air Station, Okinawa, did at Okinawa Japan, on or about December 1999, with intent to deceive, sign an official record, to wit: travel voucher, which record was false in that she claimed she stayed at a San Diego hotel from 2 November 1999 until 12 November 1999 at a cost of $96.92, when in fact she stayed there from 2 November 1999 until 25 November 1999 at a cost of $45.00, and was then known by said Corporal D_ D. C_ (Applicant) to be so false. Article 132: In that Corporal D_ D. C_, (Applicant), U.S. Marine Corps, Headquarters and Headquarters Squadron, Marine Corps Air Station, Okinawa, on active duty, did at Okinawa, Japan, on or about December 1999, by presenting a voucher to M_ E. S_, a person duly authorized to approve such claim, present for approval and payment a claim against the United States, in the amount of $2,229.16 for lodging she stayed at in San Diego, which claim was false and fraudulent in the amount of $1,779.16, in that the subject reported her stay at the Best Western Seven Seas Lodge on 2 November 1999 through 26 November 1999 at a cost of $96.92 per night when, the subject actually resided at the hotel from 2 November 1999 through 12 November 1999 at a cost of $45.00 per night, and was then known by the said Corporal D_ D. C_ (Applicant) to be false and fraudulent.

000411:	Commanding Officer, Headquarters and Headquarters Squadron, Marine Corps Air Station, Futenma, recommending approval of Applicant's discharge under other than honorable conditions by reason of separation in lieu of trial by court-martial.

000412:	SJA review determined the case sufficient in law and fact.

000413:	GCMCA, Commanding General, Marine Corps Base, Camp Smedley D. Butler, approved the Applicant's discharge under other than honorable conditions by reason of separation in lieu of trial by court-martial.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20000425 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).  

The Applicant implies an impropriety in that her command indicated that the Applicant would be subject to court-martial if she was not administratively separated.  In a signed statement, the Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial.  She consulted with counsel and was fully advised of the implications of her request.  The Applicant understood that if discharged under other than honorable conditions, it might deprive her of virtually all veterans' benefits based upon her current enlistment, and that she 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 she understood the elements of the offenses with which she was charged.  She admitted she was guilty of violating Articles 107 and 132 of the UCMJ, which rendered her triable by court-martial.  The Applicant requested separation to escape trial by court martial.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  The evidence of record does not demonstrate that the Applicant was not responsible for her conduct or that she should not be held accountable for his actions.  Relief denied.

The Applicant implies that her character of service is inequitable because she was processed for discharge because “the number of days on a [travel] claim” were wrong and because she angered an administrative chief.  The Applicant further contends that her discharge is inequitable because it was based on “one isolated incident in 6 years of service.”  The Applicant admitted guilt to violating Articles 107, false official statement and 132, fraud against the United States, of the UCMJ.  The Applicant was also subject to nonjudicial punishment for violations of Articles 91 and 108 of the UCMJ.  The Applicant’s violations of Articles 91, 107, 108 and 132 are serious offenses for which a punitive discharge is authorized if adjudged as part of the sentence upon conviction at special or general court-martial.  The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her willful failure to meet the requirements of her contract with the Marine Corps and falls far short of that required for an upgrade of her characterization of service.  Relief is not warranted.

The Applicant implies her discharge is inequitable because her travel was “due to lack of caring and negligence of the Naval physicians.”  The Applicant also implies that her discharge was inequitable because she should not have been stationed in Japan.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  The Board could find no connection between the Applicant’s allegations and the Applicant’s separation in lieu of trial under other than honorable conditions.  The Applicant admitted  to the commission of serious offenses, to include fraud against the United States, and requested discharge in lieu of trial.   Relief denied.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

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 P1900.16E), effective 
18 Aug 95 until 31 August 2001.

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 107, false official statement, Article 108, willfully damaging government property or Article 132, fraud against the United States.

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