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

 ex-PFC, USMC
Docket No. MD99-01094

Applicant’s Request

The application for discharge review, received 990811, 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 000512.  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.  I was discharged under other than honorable conditions for assault charge.

I was found not guilty in the decision discussed in attached.
I request that my DD-214 be changed to Honorable.  Thank you!

Documentation

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

Copy of Criminal Action Docket

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive:  USMCR(J)		951024 - 960922	COG

Period of Service Under Review:

Date of Enlistment:  960923		Date of Discharge:  981228

Length of Service (years, months, days):

	Active:    02  03  06
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  42

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  NMF			Conduct:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  Certificate of Commendation

Days of Unauthorized Absence:  72 

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:

970520:	Counseled for deficiencies in performance and conduct.  [Violation of Article 86 on the following dates: 970507, 970515 and twice on 970516 (for morning formation and the 1300 formation).]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
980224:	NJP for violation of UCMJ, Article 86 (5 specs):
Specification: Failed to go at the time and dates prescribed to physical therapy on 0930, 12Jan98, 15Jan98, 1000, 16Jan98, 0950, 20Jan98 and 1300, 3Feb98.
Awarded Restriction and extra duties for 30 days, reduction to PFC.  Suspended for 6 months.  Not appealed.

980523:	Applicant arrested and charged with unlawfully and with a deadly weapon, to wit: a gun, without intent to kill, intentionally make an unlawful threat, by word or act, to do violence to person, and while having the apparent ability to do so, did do an act, to wit: pointed the gun at the victim, which created a well-founded fear that such violence was imminent, and in the course thereof used a firearm, in violation of Sections 784.021(1)(a) and 775.087(2), Florida Statutes (F3-L6).  From supporting documents:  990603 applicant found not guilty.

980610:	NJP for violation of UCMJ, Article 86 (2 specs):
Specification 1: Unauthorized absence from 1200, 26MAY98 to 0730, 1JUN98 (6 days).
Specification 2: Failed to go to appointed place of duty 0630 to 0730, 3JUN98.
Awarded forfeiture of 1/2 months pay for 1 month, restriction and extra duties for 30 days, reduction to PFC.  Forfeiture suspended for 3 months.  Not appealed.

980724:	Applicant to unauthorized absence 0701, 24JUL98.

980828:	Applicant to unauthorized absence

981002:	Applicant from unauthorized absence 0100, 2OCT98.

981002:	Applicant to confinement.

981119:	Special Court-Martial.
	Charge I: violation of the UCMJ, Article 86:
	Specification: Unauthorized absence 27JUL to 0100, 2OCT98 (66 days).
	Findings:  to Charge I and specification thereunder, guilty.  
	Sentence:  Confined for 90 days, reduction to Pvt.
	
981205:	Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due to the Commission of a serious offense.  The basis for this recommendation is your arrest on Escambia County, Florida for unlawfully and with a deadly weapon without intent to kill, intentionally make an unlawful threat, by word or act, to do violence to S_ F_.  [Date estimated.]
981207:  	Applicant advised of his rights and having elected not to consult 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.

981208:	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 your arrest in Escambia County, Florida for unlawfully and with a deadly weapon without intent to kill intentionally make an unlawful threat, by word or act, to do violence. 

981223:	SJA review determined the case sufficient in law and fact.

981223:	GCMCA [Commanding General, 2d Marine Aircraft Wing] 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 981228 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).

In the applicant’s issue 1, the Board determined this issue is without merit.  The applicant claims he was discharged for assault and he was found not guilty in civilian court.  The facts are, the applicant was processed and discharged for Commission of a serious offense and not for a civilian conviction.  Had the applicant been processed for a civilian conviction, the findings of the civilian court would be binding on the military.  A military or civilian conviction is not required to process a member for separation for Commission of serious offense.  Additionally, the applicant waived his right to an administrative separation board, which would have given him the opportunity to present his case.  The discharge was proper and equitable.  Relief is denied.

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