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

 ex-Cpl, USMC
Docket No. MD99-00095

Applicant’s Request

The application for discharge review, received 981014, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a Personal Appearance Hearing in the Washington National Capital Region and listed no representative on the DD Form 293.

Decision

A personal appearance hearing was conducted in Washington, D.C. on 990401.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety in the reason for discharge or inequity in the characterization of the applicant’s service at the time of his discharge.  The Board’s vote was four to one that the character of the discharge shall be changed to:  UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct – Commission of a serious offense (all other) with admin discharge board, authority: MARCORSEPMAN Par. 6210.6.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  My discharge Under Other Than Honorable Conditions was based on one isolated event in 36 months of service.  All civil action upon which my discharge was based, was subsequently dismissed.

2.  A review of my service records will show that my service was otherwise exemplary and meritorious.  It is my contention that, had the civil matter been dismissed prior to the date of my administrative hearing, the case for my discharge would have been nullified.
	This was the only occurrence in my lifetime in which I had ever been in legal trouble, and I have led an exemplary life since then.  Documentation to support evidence of my post-service character (college degree, VA benefit forms, etc.) will be submitted within 60 days.

3.  Request for clemency based on post-service conduct.

Documentation

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

Copy of DD Form 214
Copy of DD Form 215
Tallahassee Community College Associate in Arts Diploma dtd 841213
The Florida State University, College of Business, Bachelor of Science in Marketing Diploma dtd 861213.

PART II - SUMMARY OF SERVICE

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

	Active:	None
	Inactive:	USMCR (J)		800623 - 801002	COG

Period of Service Under Review:

Date of Enlistment:  801003			Date of Discharge:  831012

Length of Service (years, months, days):

	Active:  03  00  10
	Inactive:  None

Age at Entry:  19				Years Contracted:  4

Education Level:  12				AFQT:  95

Highest Rank:  Cpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.5 (6)				Conduct:  4.5 (6)

Military Decorations:  None

Unit/Campaign/Service Awards:  Letter of Appreciation, Certificate of Achievement

Days of Unauthorized Absence:  None 

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

UNDER CONDITIONS OTHER THAN HONORABLE /Misconduct-Commission of a serious offense (admin discharge board required but waived), authority:  MARCORSEPMAN Par. 6210.6.

Chronological Listing of Significant Service Events:

830413:	IHCA at Beaufort, SC.

830414:	Released without trial.

830808:	Applicant notified of intended recommendation for discharge under condition other than honorable by reason of misconduct due to the commission of a serious offense as evidenced by civilian arrest, and charge of assault and battery with intent to kill, and piracy to destroy personal and real property.

830811:  	Applicant advised of his 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.

830808:	Commanding Officer, Headquarters and Service Battalion, Marine Corps Recruit Depot (MCRD), Parris Island, SC, recommended discharge under condition other than honorable by reason of misconduct due to the commission of a serious offense.  The factual basis for this recommendation was a series of criminal acts in Beaufort County, SC on 830408.

830817:	Recission of waiver of Administrative Discharge Board (ADB) provided a General discharge is issued.

830818:	SJA review determined the case sufficient in law and fact, and recommended discharge under other than honorable conditions.

830819:	Commanding General (CG), MCRD/Eastern Recruiting Region (ERR), Parris Island, SC did not accept the applicant’s conditional waiver and referred the case to an ADB.

830902:	An ADB, based upon a preponderance of the evidence and by unanimous decision, found that the applicant had committed misconduct due to the commission of a serious offense, and recommended separation under other than honorable conditions.

830930:	SJA review determined the case sufficient in law and fact.

831005:	GCMCA [CG, MCRD/ERR] directed the applicant's discharge under conditions other than honorable 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 831012 under conditions other than honorable 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).

In the applicant’s issues 1 and 2, he implies that a permissive doctrine exists whereby one in the military is allowed a “single misdeed”.  The Board believes that the applicant is confusing this with the civilian world wherein some offenses are treated with leniency because they are a first time incident on an otherwise clear record.  No such leniency exists in the military.  The applicant is responsible for his actions and must accept the consequences of his misdeeds.  The Board will not grant relief on the basis of these issues.

In response to the applicant’s issue 3, there is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the Service.  However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (E). The applicant has provided sufficient documentation of his good character and conduct that the Board recommends partial relief by upgrading the applicant’s discharge to UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct – Commission of a serious offense (all other) with admin discharge board, authority.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210 MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16C), Change 1, effective 06 Apr 83 until 14 Apr 84. 

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 128:  Assault with a dangerous weapon or means likely to produce grievous bodily harm or death.

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 obtain a copy of DoD Directive 1332.28 by writing to:

		DA Military Review Boards Agency
		Management Information and Support Directorate
		Armed Forces Reading Room
		Washington, D.C.  20310-1809

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
		Building 36 Washington Navy Yard
		720 Kennon Street, SE  Room 309
		Washington, D.C.  20374-5023