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

 ex-Sgt, USMC
Docket No. MD00-00319 

Applicant’s Request

The application for discharge review, received 000110, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant listed the American Legion as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000824.  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.  (EQUITY ISSUE)  This former member proffers that his UOTHC discharge is to harsh for his offenses as evidenced by his Administrative Discharge Board's recommendation to suspend his separation.  Moreover, he avers that his Command abused it's authority in overruling the suspension recommendation.  On this basis, he opines that upgrade of his characterization of service to honorable is warranted.

2.  (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.

Documentation

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

Copy of DD Form 214
Statement from applicant dated October 4, 1999
Statement from applicant dated March 4, 1998
Letter from applicant's girlfriend dated July 22, 1999
Copy of Letter of Appreciation dated November 17, 1997
Letter to applicant from House of Delegates dated February 12, 1998
Copy of evaluation dated March 23, 1998
Copy of Marine Corps Request Mast Application dated March 6, 1998
Copy of certificate dated October 9, 1998

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		911209 - 961030	HON
	Inactive: USMCR(J)		910619 - 911208	COG

Period of Service Under Review:

Date of Enlistment:  961031		Date of Discharge:  981208

Length of Service (years, months, days):

	Active:    02  01  08
	Inactive:  None

Age at Entry:  23			Years Contracted:  4

Education Level:  12			AFQT:  45

Highest Rank:  Sgt

Final Enlisted Performance Evaluation Averages:  Enlisted performance reports were available to the Board for review.

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, NAM, GCM with 1 Star, JMUC, AFEM

Days of Unauthorized Absence:  4 

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:

961031:	Applicant reenlisted for 4 years.

980108:	NJP for violation of UCMJ, Article 128:
	Specification: Assault of spouse on 12Aug97.  No further information found in service record.

980317:	NJP for violation of UCMJ, Article 86:
Specification: Unauthorized absence from work place.  No further information found in service record.

980427:	Counseled for deficiencies in performance and conduct.  [Lack of discipline and judgement, maturity concerning domestic matters.  Lack of discipline and judgement in your ability to remain at your appointed place of duty during prescribed times.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

980501:	Applicant arrested by San Diego Sheriff's Department (Vista) for assault with a deadly weapon and spousal abuse within injury.  Current bail: $15,000.00.

980505:	Applicant placed in pretrial confinement for alleged violations of Article 134.

980513:	Military protection order issued to applicant.

980528:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

980528:	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 by San Diego Sheriff's Department for assaulting girlfriend with a deadly weapon on 1May98.  

980529:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

980710:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to the commission of a serious offense, that the misconduct warranted separation under other than honorable conditions, and recommended discharge be suspended for 12 months.

980901:	Commanding officer disagrees with ADB's recommendation to suspend discharge for 12 months.

981113:	SJA review determined the case sufficient in law and fact.

981113:	GCMCA [Commanding General, 1st Force Service Support Group] disapproved recommendation for suspension of discharge and 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 981208 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 first issue states:  “(EQUITY ISSUE)  This former member proffers that his UOTHC discharge is to harsh for his offenses as evidenced by his Administrative Discharge Board's recommendation to suspend his separation.  Moreover, he avers that his Command abused it's authority in overruling the suspension recommendation.  On this basis, he opines that upgrade of his characterization of service to honorable is warranted.”  The NDRB found that the UOTHC discharge was equitable for the offenses the applicant was found guilty of (Violation of Article 128:Assault),and offense that could result in a punitive discharge at court martial.  Further, the NDRB found that the applicant’s Commanding Officer and Commanding General did not abuse their authority in executing the applicant’s discharge as the Administrative Discharge Board makes recommendations to the chain of command.  The Chain of Command is not bound by the recommendations of the Administrative Discharge Board.  Relief is not warranted.

The applicant’s second issue states:  “(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 following is provided for the applicant’s edification.  The NDRB is authorized to consider post-service factors in the re characterization of a discharge.  The applicant must be aware that 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, an error or injustice 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, may be considered by the NDRB.  The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is highly recommended.

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 128, assault.

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 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