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

 ex-LCpl, USMC
Docket No. MD04-00294

Applicant’s Request

The application for discharge review was received on 20031205.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to “Convenience of the Government.”  The Applicant requests a documentary record discharge review.  The Applicant did not list a representative on his DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040812.  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 and reason for discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/VOL DIS (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:

“1.  Clemency is warranted because it is an injustice for me to continue to suffer the adverse consequences of an Other than Honorable discharge.  I proudly served 9 solid years with distinction in the Marine Corps and was on my second enlistment at the time of discharge.

2.  My conduct and efficiency rating marks were excellent to exemplary as reflected in the enclosed fitness reports.

3.  I received various awards and decorations to include the Navy Achievement Medal, 5 Meritorious Masts, 1 Letter of Appreciation and a Good conduct Medal with 1 star.

4.  My record of promotions showed I was an excellent Marine, being promoted to my last rank of Sergeant at my first eligibility.

5.  The application of the UCMJ to my particular offenses was unfairly applied as there were two other Marines equally involved in the offenses but who received milder punishment and were allowed to remain in the military.

6.  I received letters of recommendation upon discharge from my Maintenance Officer and my Officer in Charge.

7.  I have been a good citizen since being discharged.  I have maintained my family in good order.  I have worked for two international companies and have excelled with both to the extent of being recognized as Regional Technician of the Year by one and a couple of times as Technician of the Month by the other.

8.  I seek to better myself and my family’s standard of life daily.  A change in discharge type would give me access to resources such as education assistance and the G. I. Bill which I eagerly paid into at the beginning of my military service.  This access to these resources would aid me greatly in improving myself professionally and more importantly achieving a higher standard of living for my family.”

Documentation

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

Character reference, dtd 17 Feb 95
Character reference, undated
Fitness Report, TR 940301 - 940907
Fitness Report, AN 930301 - 940228 
Fitness Report, AN 921101 - 930228 
Fitness Report, CH 920301 - 921931 
Fitness Report, AN 910602 - 920229 
Nomination for Marine Aviation Electronics Technician of the Year Award (4 pages)
Meritorious Mast, dtd 2 August 1993
Navy Achievement Medal (2 pages)
Recommendation for Meritorious Promotion, dtd 3 Jan 89
Recommendation for Battalion NCO of the quarter, dtd 6 Dec 88
Copy of DD Form 214 (State director of Veterans Affairs – 6)
Felony Records Search, Jefferson County, Texas, dtd January 8, 2004
Class A, B and C Misdemeanor Search, Jefferson County, Texas, dtd January 8, 2004

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		860225 - 920310	HON
	Inactive: USMCR (J)		850402 - 860224	COG

Period of Service Under Review:

Date of Enlistment:  920311		Date of Discharge:  950310

Length of Service (years, months, days):

	Active:    02  11  29
	Inactive:  None

Age at Entry:  27			Years Contracted:  4

Education Level:  12			AFQT:  91

Highest Rank:  Sgt

Final Enlisted Performance Evaluation Averages (number of marks):

Fitness Reports were available to the Board for review.

Military Decorations:  MeritM (6 Awds), LtrApp, GCM (w/1 star), NAM

Unit/Campaign/Service Awards:  MUC, NDSM, ASR

Days of Unauthorized Absence:  None

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:

941220:	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 81: Conspiracy; Article 92 (2 specs): Failure to obey order or regulation; Article 125 (3 specs): Sodomy; Article 134 (12 specs):  Conduct prejudicial to good order and discipline while bringing discredit upon the armed forces.

950302:	GCMCA [Commanding General, 2d Marine Aircraft Wing] 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 other than honorable conditions by reason of conduct triable by courts-martial.

950313:	SJA review determined the case sufficient in law and fact.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19950310 under other than honorable conditions 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 – 6:  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  The Board discovered no impropriety or inequity; thereby, considers the Applicant’s discharge proper and equitable. A characterization of service of under other than honorable conditions is warranted when the member’s conduct constitutes a significant departure from that expected of a member of the Marine Corps.  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 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 in the military or the character of discharge received there from may have a bearing.  The Applicant stated he understood the elements of the offenses he was charged under.  He admitted he was guilty of violating Article 81: Conspiracy; Article 92: Failure to obey order or regulation; Article 125: Sodomy; Article 134:  Conduct prejudicial to good order and discipline while bringing discredit upon the armed forces.  Relief is unwarranted.
  
Issue 7:  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 the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  Evidence of continuing educational pursuits, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.   At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.  Relief denied.

Issue 8:  The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board (NDRB).  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veteran’s benefits.  This issue does not serve to provide a foundation upon which the Board can grant relief.  However, the NDRB did note an administrative error on the original DD Form 214 and requested Headquarters Marine Corps to make a correction to reflect the Applicant’s four years of continuous honorable service.  The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested in the issue.  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 additional documentation to support any claims of post-service accomplishments at that time.  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 81: Conspiracy; Article 92: Failure to obey order or regulation; Article 125: Sodomy; Article 134:  Conduct prejudicial to good order and discipline while bringing discredit upon the armed forces.

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