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

 ex-LCpl, USMC
Docket No. MD04-00426

Applicant’s Request

The application for discharge review was received on 20040114.  The Applicant requested the characterization of service received at the time of discharge be changed to honorable.  The Applicant requested a documentary record 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 20040817.  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/MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.6.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “My issues is one that is very dear.  I was given an (other than Honorable Discharge) in Feb of 1996 and never was given a chance to be heard out by my unit or the Marine Corp.  If they had it would have been found out that I was not apart of the crime committed.  Second I would have had the Marine’s backing and that I feel would have play an important part.  Wheather it was counsel or just support.  I spent 3 yr 7 month in the Marines and learn alot about team work and being apart of unit but my (Discharge) was to me without any of what they instilled in me.  If I was apart of it I can understand but I wasn’t even given a chance to be heard by the Marine Corps.

Dear Review Board,

In the case for review for C_ A_ T_ Jr (Applicant) (social security number deleted) I am submitting the following appeal in writing in hopes of consideration for an upgrade to a Honorable Discharge.  Let it be known before that I am aware that my discharge was in all eyes just but I am just asking for the opportunity to be heard in which I wasn’t given before my discharge on 2/01/96.

I think about the days of my service in the United State Marine Corps and I enjoyed it for a number of reasons.  The most important just being apart of something with so much pride and so much honor.  I do not consider my action justified nor I am proud of them.  I think about them all the time and wish so much that I could change them but I can not.

I was given an (Other than honorable discharge for a conviction of a serious offense) in which I denied than and still deny having anything to do with the crime.  My unit didn’t make the effect nor put any concern in the case and I was very sadden by that and still don’t understand why not.  Had they put forth the effect it would have been found out that I was innocent of the charges against me.  I was not in outstanding Marine but I did have pride in my unit and platoon.  I was a Section Leader and squad leader of our 61mm mortars and Alpha 1/1.
I loved my squad and would have gone down with them any day.  I never give up on any of my leaders and always in training give the best I could.  The only marks I had was due to my young mind and youth in my first year ½ in the Corp.  I feel that my unit didn’t even try to find out what happen and that played a big part in my conviction.  True I never should have been in the predicament nor put my unit in such an embarrassing state.  I know I brought shame and disgrace to the very Honor of what the Marines stood for and for that I am truly sorry and aware but a ninth teen year man is subject to bad decision sometimes.  I had never been in any trouble other than a speeding ticket and that played no weight on the courts in San Diego County courts.  I would have gladly taken a degrade of rank and extra duty for the remaining of my time in the Marine Corp in which was only 4 months instead of the two years eight months in the California State Prison system that I did get.  My unit might have had a reason for not getting involved and again I was not in the position to question them but it did hurt me deeply that they didn’t support me not even try to found out the case information.  I will ask that you please not consider that one day of a foolish act when you review my record.

I was with three other Marines and a robbery took place I was in the restroom of the place being robbed by these Marines and when I came out I was right in the middle of an armed robbery.  With so much happening so fast and me being so scared I ran out with those Marine and left.  If you ask if I knew they were up to no good I would have to say yes, If you ask me if I knew them I would have to say yes again to that as well.  If you ask me did I have anything to do with it I would say with a most intense NO, I would go as far to say I told them not to be stupid nor do anything stupid.  They told me fine and they were hungry and wanting something to eat.  I told them I needed to use to rest room while they order their food. I was under the understanding that they were not going to do anything crazy but I was so wrong.  That one day cost me my family and my life would never be the same after that.  During the trail my unit never showed up to the court sessions nor spoke on my behalf in front of the judge.  It was as if I was by myself and alone.  I serviced my country I would be willing to die for them but they wouldn’t even stand by me to just see if I was innocent or not.  Not one person came down to see about me.  I was bailed out by my wife and my unit sent the Military Police to pick me up again I didn’t understand that.  They wouldn’t come down to see about me but they sent the MP’s down to pick me up when my wife bails me out.  I was released because I had a wife and one child and my wife was pregnant with my second child and I was not a flight risk.  I went to court at the dates and time I was suppose to for six months with the case ending with a plea bargain to which I wish I had not taken.  I pleaded gently to a lesser charge in hopes that my clean record would get my probation (at least that is what I was told to me by my Lawyer). I took the plea in blind faith that I would still be able to finish my time in the Marine Corp and go back to Dallas Texas where I am from and maybe start over and put that day behind me.  That day still hunts me I hate that choice and how I hurt my children and wife.  The judge ask me why I took the plea and he believed that I didn’t have anything to do with the crime, he also believed that I was a good person that made a bad decision and bad friends.  He said that I was a young man with a nice family, he said he believed that I was in the wrong placed at the wrong time but since I had pleaded to a lesser charge and went to the probation board he was going to go with what they recommended in which was two years eight months in the California State Prison system.  The way my Lawyer told me it was since we were all apart of the crime if one took a deal all had to take it.  I was the last to take it and the others had already taken their plea bargain again I was not aware of the court nor my rights.  I am so sorry for my foolishness and mistakes but I have since charge my whole life around.  The marriage I was in doing my years in the Marine Crop ended in a devoice but we are still good friends.  I have been re-married five years and have a lovely 9 ½ months baby girl to add to my other children from my last marriage 3 to be exact.  We have a home and I am trying to go to school to open my own business.  I am a Minster and have been for the pass 7 years (license) and helping others young people not make the same mistakes as I did.  I am also a Counselor for trouble children.
I am asking for this up grade because that is one mark of a bad choice I think about all the time and it hurts me.  I can not go back and charge my action and I have learned to deal with the time I served in the Prison but I still would like to know that I have an Honor Discharge for the time a served in the Marines.  Please consider this letter and grant my request please. Again I am very sorry for my embarrassment and the shame I cause the Marine Crop.

Sincerely C_ A T_ (Applicant)	(Signed)”

Documentation

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

Applicant’s DD Form 214 (2 copies)
Baptismal Certificate
Certificate of License (The Gospel Ministry), dtd 12 October 1997

PART II - SUMMARY OF SERVICE

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

	Active:   			None			HON
	Inactive: USMCR (J)		910809 - 920622	COG

Period of Service Under Review:

Date of Enlistment:  920623		Date of Discharge:  960201

Length of Service (years, months, days):

	Active:    03  05  00  (Accounts for lost time.)
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  34

Highest Rank:  LCpl			MOS:  0311, Rifleman

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (7)			Conduct:  4.3 (7)

Military Decorations:  LtrApp

Unit/Campaign/Service Awards:  NDSM, SSDR

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.6.

Chronological Listing of Significant Service Events:

930914:	NJP for violation of UCMJ, Article 86:  … without authority, fail to go at the time prescribed to his appointed place of duty.
Awd for of $221.00 per month for 1 month, and 14 days restriction and extra duties.  Forf susp for 6 mos.  Not appealed.

931006:	Counseled for deficiencies in performance and conduct.  [Received Non Judicial Punishment for being U. A. from his appointed place of duty.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

931113:	NJP for violation of UCMJ, Article 117:  … wrongfully use provoking words and gestures towards the MP’s.
Awd red to E-2, forf of $400.00 per month for 2 months, and 30 days restriction.  Restriction susp for 6mos.  Not appealed.

931115:	NJP imposed and suspended on 930914 is vacated.

931117:	Counseled for deficiencies in performance and conduct.  [Constantly involved with problem situations with authority figures.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940919:	Counseled for deficiencies in performance and conduct.  [Financial responsibilities.  Failure to pay rent and make timely payments on DPP.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950222:	Counseled for deficiencies in performance and conduct.  [Inability to properly account for military controlled item.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. 

950421:	Applicant in the hands of civil authorities to 950630.

960109:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by the “Pronouncement of Judgment Order dtd 951226, evidencing (the Applicant’s) participation (in an) attempted armed robbery.”

960109:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

960110:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  The factual basis for this recommendation was the Applicant’s “conviction in civilian court fro attempted armed robbery and sentenced to 28 months in prison.” 

960126:	SJA review determined the case sufficient in law and fact.

960130:	GCMCA [Commander, 1st Marine Division (Rein)] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19960201 under other than honorable conditions for misconduct due to the commission of a serious offense (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).

Issue 1:  A service characterization 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 United States Marine Corps.  The Applicant’s service was marred by four negative page eleven entries; the awarding of nonjudicial punishment (NJP) on two occasions, and a conviction in civil court for attempted armed robbery.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives regulating good order and discipline in the naval service.  His conduct falls far short of that required for an honorable characterization of service.  A discharge upgrade would be inappropriate.  It must be noted that most Marines serve honorably; thereby, earning honorable discharges.  In fairness to those Marines, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due.  Relief denied.

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.
 
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 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 Aug 95 until 30 Jan 97). 

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 117, Provoking speeches or gestures.

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