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

 ex-LCpl, USMC
Docket No. MD00-00295

Applicant’s Request

The application for discharge review, received 991228, 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 000831.  After a thorough review of the records, 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 CONDITIONS OTHER THAN HONORABLE/Misconduct-Civilian Conviction (admin discharge board required but waived), authority: MARCORSEPMAN Par. 6210.7.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  I wasn't given proper representation of counsel, upon signing the paperwork for my discharge at no time did I understand I was signing a waiver of my rights to appeal to a discharge board.

2.  You can't waive your right to a board hearing while you're in jail, so my discharge after a "waiver" was improper.

3.  I was discharged before my appeal was completed.

4.  Without my not being there, any discharge hearing was unfair because I was not able to tell my side of the story.

5.  My conduct and efficiency ratings/behavior and proficiency marks were mostly pretty good.

6.  I received letters of commendation.

7.  My record of promotion showed I was generally a good service member.

8.  My record of NJP's/Article 15's indicates only isolated or minor offenses.

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		820320 - 820831	COG

Period of Service Under Review:

Date of Enlistment:  820901		Date of Discharge:  850122

Length of Service (years, months, days):

	Active:    02  04  22
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  31

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.1 (3)			Conduct:  4.2 (3)

Military Decorations:  None

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

Days of Unauthorized Absence:  349

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

UNDER CONDITIONS OTHER THAN HONORABLE /Misconduct-Civilian Conviction (admin discharge board required but waived), authority:  MARCORSEPMAN Par. 6210.7

Chronological Listing of Significant Service Events:

830722:	NJP for violation of UCMJ, Article 92:
Specification: Viol NAVREGS, Art 1139 dated 26Feb73, by failing to report offenses committed by PFC, to wit: failing to drive safely and with extreme caution in the limited area, driving a government vehicle without a license, exceeding the posted speed limited and failing to stay on a hard road surface in the limited area on 4Jul83.
Awarded forfeiture of $50.00 per month for 1 month, restriction and extra duties for 7 days.  Not appealed.

830722:	Applicant warned this date by the CO of frequent involvement with military authorities of a discreditable nature, could result in permanent removal from the PRP.

830729:	Counseled for deficiencies in performance and conduct.  [Your dereliction in the performance of duties.]  Applicant advised that incident/conviction could result in an administrative separation under conditions other than honorable. 

840208:	Applicant arrested by Jacksonville Sheriff's Office.  Charged with two counts of murder and 1 count of aggravated battery.

840501:	Applicant permanently decertified from the Personnel Reliability Program.  Applicant has an estimated court date during July 1984 for two charges of first degree murder.

841122:	Applicant notified of intended recommendation for discharge under condition other than honorable by reason of misconduct due to civilian conviction.

841214:  	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.  [Signed by counsel.]

850110:	SJA review determined the case sufficient in law and fact. [If discharged UCOTH] 

850114:	CMC directed the applicant's discharge under conditions other than honorable by reason of misconduct due to civilian conviction.

PART III – RATIONALE FOR DECISION AND PERTINENT 
REGULATION/LAW

Discussion

The applicant was discharged on 850122 under conditions other than honorable for misconduct due to a civilian conviction (A).  The Board presumed regularity in the conduct of governmental affairs (B).  After a thorough review of the records, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

In response to applicant’s issues 1-4, the Board determined that to permit relief an error or injustice must be found to have existed during the period of enlistment under review.  There was nothing in the records, nor did the applicant provide any documentation, to indicate there existed an error of fact, law, procedure, or discretion at the time of discharge.  There was no rights violation and no basis for relief.

In response to applicant’s issues 5-7, the Board reviewed the applicant’s military record and found that nothing in the record warrants relief.

In response to applicant’s issue 8, the applicant implies that a permissive doctrine exists whereby one in the military is allowed an "isolated offense".  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 especially for charges of murder.  The Board will not grant relief on the basis of this issue.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210 MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16C), Change 2, effective 15 Apr 98 until 28 Jul 87.

B.  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.  

C.  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.

D.  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