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

 
ex-LCpl, USMC
Docket No. MD04-00200

Applicant’s Request

The application for discharge review was received on 20031117.  The Applicant requested the service characterization received at the time of discharge be changed to honorable.  The Applicant requested a personal appearance hearing before the board in the Washington National Capital Region.  The Applicant did not list a representative on his DD Form 293.  Subsequent to the application, the Applicant obtained representation from the American Legion.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 20040909.  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 four to one that the character of the discharge shall not change.  The discharge shall remain: UNDER CONDITIONS OTHER THAN HONORABLE/Separation in lieu of trial by court-martial, authority: MARCORSEPMAN Par. 6419.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“Issue 1:  My discharge is inequitable considering my collective 4 years of active service did not take a significant departure from expected behavior.

Issue 2:  My discharge is inequitable as I was an Alcohol Rehabilitation Failure which does not warrant an Other Than Honorable Discharge.

(For both Issues, please see my letter to Review Board)”

Additional issues submitted by Applicant’s representative (American Legion) at the hearing:

(Equity Issue)   On behalf of this former member, we request that the Board consider provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.
______________________________________________________________________

In accordance with 32 C.F.R., section 724.166 and SECNAVINST 5420.174C, enclosure (1), paragraph 1.16, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue in supplement to this Applicant’s petition. 

The American Legion’s express purpose in providing this issue and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised.  To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 U.S.C., section 1553, and set forth in 32 C.F.R., part 724 and SECNAVINST 5420.174C, enclosure (1). 

This case is now respectfully submitted for deliberation and disposition.”

Documentation

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

Applicant’s statement, dated November 9, 2003
Job/Character reference, dated October 21, 1996
Thank you note from President & CEO SBCDO, dated December 5, 2001
Letter to Applicant, dated December 17, 2001
Letter to Applicant, dated March 8, 2002
Annual Employee Performance summary, dated January 21, 2002
SBC Directory Operations FYI, dated May 2, 2003
Annual Employee Performance summary, dated May 28, 2003
Glory Days Running intranet page, dated November 11, 2003
Certificate of completion, dated October 13, 2003
Character reference from Applicant’s wife, dated November 10, 2003
Twelve pages from Applicant’s service record
Applicant’s DD Form 214
Applicant’s DD Form 215

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR (J)		840309 - 841001	COG

Period of Service Under Review:

Date of Enlistment:  841002		Date of Discharge:  881202

Length of Service (years, months, days):

	Active:    04  02  01
	Inactive:  None

Age at Entry:  18			Years Contracted:  6

Education Level:  12			AFQT:  83

Highest Rank:  Cpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  NMF**			Conduct:  NMF

Military Decorations:  GCM

Unit/Campaign/Service Awards:  SSDR w/1*, Letter of Appreciation

Days of Unauthorized Absence:  None

**No marks found in service record.

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

UNDER CONDITIONS OTHER THAN HONORABLE /Separation in lieu of trial by court-martial, authority:  MARCORSEPMAN Par. 6419.

Chronological Listing of Significant Service Events:

860810:	Counseled for deficiencies in performance and conduct.  [Speeding (78 KPH in a 50 KPH zone).]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

861118:	Applicant’s driving privileges revoked for 2 years.

861211:	NJP for violation of UCMJ, Article 92:
Specification: Disobeyed a lawful order given by the Military Police to stop the vehicle on 2118, 861023.
Violation of UCMJ, Article 95:
Specification: Resist being apprehended by the Military Police on 2119, 861023.
Violation of UCMJ, Article 111:
Specification: Apprehended for DWI with a BAC of .15 on 2119, 861023.
Awarded forfeiture of $300.00 per month for 2 months, restriction for 45 days, reduction to LCpl.  Reduction suspended for 6 months.  Not appealed.

880208:	NJP for violation of UCMJ, Article 86:
Specification: Failed to report to appointed place of duty on 0715 to 0820, 880201.
Awarded forfeiture of $215.00 per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

880222:	Counseled for deficiencies in performance and conduct.  [Frequent violation of UCMJ and alcohol related incidents.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

881013:	Charges preferred to court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 86: Failed to go at time prescribed to appointed place of duty on 0700, 880923, to wit: Battalion Guard Class, Article 89: Behave himself with disrespect towards Captain B_ on 880923, to wit: by saying to him “I am not going to play this Marine Corps shit anymore”, Article 90: Willfully disobey lawful command on 880923, to wit: get his uniform on and get to the 0415 formation, Article 134: Wrongful previous overindulgence in intoxicating liquor, incapacitated for the proper performance of duty.

881116:	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, Article 86: Failed to go at time prescribed to appointed place of duty on 0700, 880923, to wit: Battalion Guard Class, Article 89: Behave himself with disrespect towards Captain B_ on 880923, to wit: by saying to him “I am not going to play this Marine Corps shit anymore”, Article 90: Willfully disobey lawful command on 880923, to wit: get his uniform on and get to the 0415 formation, Article 134: Wrongful previous overindulgence in intoxicating liquor, incapacitated for the proper performance of duty.

881129:	GCMCA [Commanding General, 2d Force Service Support Group (Rein), Camp Lejeune, NC] determined that Applicant had no potential for further service, that separation in lieu of trial by court-martial was in the best interest of the service, and directed discharge under conditions other than honorable by reason of conduct triable by courts-martial.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19881202 under conditions other than honorable in lieu of trial by court-martial (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

Issues 1, 2 & 3.  The Applicant contends that he served the United States well and he is entitled to an upgrade.  When the service of a member of the United States Marine Corps 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 2 nonjudicial punishment proceedings for violations of Articles 86, 92, 95 and 111 of the UCMJ.  The Applicant requested an administrative separation in lieu of trial by court-martial in order to escape punishment for violation of articles 86, 89, 90 and 134 of the UCMJ.  In requesting administrative separation the Applicant admitted his guilt.  The Applicant understood that if discharged under other than honorable conditions, it might deprive him of virtually all veteran’s benefits based upon his current enlistment.  He also understood he might encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received there from may have a bearing.  The Applicant stated he understood the elements of the offenses with which he was charged. 

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 U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The Board was duly impressed with the Applicant’s ability to conquer his addictive behavior.  We wish him continued success in his life and hope he remains on the path of sobriety.  The following is provided for the Applicant’s edification.  The NDRB has no authority to provided additional review of this case since the discharge occurred more than 15 years ago.  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

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 P1900.16C), Change 2, effective 15 May 84 until 26 Jun 89.

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 86, Unauthorized absence; Article 92, Failure to obey order or regulation; Article 95, Resistance, breach of arrest, and escape; Article 111, Drunken or reckless driving.

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

E.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 “afls14.jag.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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023