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

 ex-LCpl, USMC
Docket No. MD04-00829

Applicant’s Request

The application for discharge review was received on 20040421.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing discharge review before the Board in the Washington National Capital Region.  The Applicant did not list any representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representation from American Legion.

Decision

A personal appearance hearing discharge review was conducted in Washington, D.C. on 20050309.  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/Conduct triable by courts-martial (request for discharge for the good of the service), authority: MARCORSEPMAN Par. 6419.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

No issues were submitted by the Applicant.

Issues submitted by Applicant’s representative (American Legion):

1. (Equity Issue) This former member opines that mitigating family problems, the death of his Grandfather death and his mother’s grieving, contributed to his misconduct of record.  

2. (Equity Issue) This former member requests 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 Title 32, CFR, Section 724.166 and SECNAVINST 5420.174D, Part I, Paragraph 1.20, 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, USC, Section 1553, and set forth in Title 32, CFR, Part 724 and SECNAVINST 5420.174D. 

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:

Certificate of Outstanding Support, dtd July 21, 2002
Certificate of Dedicated Service In Music Ministry, dtd April 27, 1997
Letter of Reference from K_ D_, dtd February 25, 2005
Letter of Reference from G_ L. W_ , dtd March 2, 2005
Copy of Meritorious Mast, dtd 10 September, 1990
Copy of Letter from American Legion Representative, R_ D. S_, dtd 11 February 2005

Subsequent to the personal appearance hearing the Applicant provided the following additional document for the Boards’ consideration:

	Letter from BANTEK West Inc, L_ W_, not dated (2 pages)

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		881017 - 890904	COG

Period of Service Under Review:

Date of Enlistment:  890905		Date of Discharge:  920820

Length of Service (years, months, days):

	Active:    02  11  15  (Does not exclude lost time)
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  31

Highest Rank:  LCpl			MOS:  0311

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (6)			Conduct:  4.4 (6)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, SWASM, JUMA, HSM

Days of Unauthorized Absence:  14

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

UNDER OTHER THAN HONORABLE CONDITIONS/Conduct triable by courts-martial (request for discharge for the good of the service), authority:  MARCORSEPMAN Par. 6419.

Chronological Listing of Significant Service Events:

920205:	Counseled for deficiencies in performance and conduct.  [Frequent involvement with military/civilian authorities and minor incidents prejudicial to good order and discipline.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920721:	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: (2 Specifications): 920326-920327 (1day/S); 920505-920519 (14days/S); Article 87, missing movement; Article 92, (2 Specifications), violation of a lawful general order; wrongfully consuming alcoholic beverage in his BEQ room, and disobeying a lawful order from an NCO, Article 134, incapacitated for duty due to overindulgence in intoxicating liquor.

920731:	Applicant signed statement that he did not request treatment for drug/alcohol abuse in conjunction with his discharge.
 
920807:	GCMCA [Commanding General, 2d Marine Division] 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.

930720:	NDRB documentary record review Docket Number MD92-01893 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19920820 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).

Issue 1.  The Applicant’s representative submitted the following as issue 1, an Equity Issue: “This former member opines that mitigating family problems, the death of his grandfather, and his mother’s grieving as contributing to his misconduct of record.”  While the Applicant may feel that his family situation was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.  

Issue 2.  The Applicant’s representative submitted the following as issue 2, an Equity Issue: “This former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.”  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, 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, is considered.  The Applicant’s evidence of post-service conduct was found not to mitigate his misconduct sufficient to warrant an upgrade to his discharge.

For the edification of the Applicant, the Applicant may 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 P1900.16D), 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 87, missing movement, and UCMJ, Article 92, violation of a lawful general order.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

E.  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