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

 ex-PFC, USMC
Docket No. MD99-00489

Applicant’s Request

The application for discharge review, received 990223, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000110.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  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

1.  The discharge is improper because my seperation package states under other than honorable conditions by reason of misconduct due to a serious offense.  I was not convicted of a felonious charge.  I was only charged with two counts of misdeameanor possession of stolen goods.  This can not be called a repeated offense of theft, because my civil court concluded on 970528 that it was two counts of possession and not felonious larceny as stated on my discharge paperwork.  It also can not be considered a a repeated offense, because it was not repeated.

Documentation

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

Five pages from applicant's service record
Letter from Commanding Officer dated 26 January 1999
Copy of applicant's DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive:  None

Period of Service Under Review:

Date of Enlistment:  950801		Date of Discharge:  970822

Length of Service (years, months, days):

	Active:    02  00  22
	Inactive:  None

Age at Entry:  18			Years Contracted:  Unknown

Education Level:  Unknown		AFQT:  Unknown

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  NMF			Conduct:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, Letter of Appreciation

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:

960524:	Counseled for deficiencies in performance and conduct.  [Lack of judgment and display of insubordination, to wit: being late and tardy numerous times and failing to follow instructions.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  [Par 6210 states:  “Counseling and rehabilitation are not required if the basis of separation is a serious offense, a civilian conviction or similar juvenile adjudication, or a serious offense or civilian conviction involving drug abuse.”]

960703:	Applicant informed eligible but not recommended for promotion to LCpl for July 1996 due to pending NJP.

960717:	NJP for violation of UCMJ, Article 121:
Specification 1: Steal military property, to wit: a folding field ____ on 960627.
Awarded forfeiture of $228.00 for 7 days, restriction and extra duties for 14 days.  Forfeiture and restriction suspended for 6 months.  Not appealed.

960717:	Vacate suspended forfeiture and restriction.

960815:	Applicant informed eligible but not recommended for promotion to LCpl for September 1996 due to recent NJP.

961202:	Applicant informed eligible but not recommended for promotion to LCpl for December 1996 due to pending civil trial for a felony theft.

970113:	Applicant informed eligible but not recommended for promotion to LCpl for February 1997 due to pending civil trial for a felony theft.

970227:	Applicant informed eligible but not recommended for promotion to LCpl for March 1997 due to pending civil trial for a felony theft.

970403:	Applicant informed eligible but not recommended for promotion to LCpl for April 1997 due to pending civil trial for a felony theft.

970501:	Applicant informed eligible but not recommended for promotion to LCpl for May 1997 due to pending civil charge.

970515:	Applicant informed eligible but not recommended for promotion to LCpl for June 1997 due to pending civil court charge.

970702:	Civil Conviction: Onslow District Court of North Carolina for violation of possession of stolen goods (2 offenses).
Sentence:  Fined $1510.00, confinement for 90 days suspended.  Supervised probation for 18 months.

970711:	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 conviction on July 2, 1997 by the State of North Carolina for two charges of possession of stolen goods.

970715:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

970721:	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 conviction on July 2, 1997 by the State of North Carolina for two charges of possession of stolen goods. 

970814:	SJA review determined the case sufficient in law and fact.

970814:	GCMCA [Commander, 2d Marine Division, II Marine Expeditionary Force] 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 970822 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).

The applicant’s issue is that his discharge was improper because he was not convicted of a felonious charge.  He was found guilty of two charges of possession of stolen property/goods.  The applicant does not understand the application of the “commission of a serious offense” provision.  After a thorough review of the applicant’s record, the Board concluded that no relief was warranted in this case.

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 present). 

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 [ e.g., Article 86, unauthorized absence for more than 30 days].

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
		Washington Navy Yard
		720 Kennon Street SE Rm 309
		Washington, D.C.  20374-5023