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

ex-LCpl, USMC
Docket No. MD01-00156

Applicant’s Request

The application for discharge review, received 001120, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance hearing discharge review before a traveling panel closest to Houston, Texas.  The applicant did not list any representative on the DD Form 293.  In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area.  The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010502.  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. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  Incompetent Representation.

2.  Ignorance of legal rights.

3.  Violation of 6th Amendment Rights.

4.  No DNA samples taken to prove innocence.

5.  No witnesses allowed to support claims.

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

7.  I received awards and decorations.

8.  I received letters of commendation.

9.  My record of promotions showed I was generally a good service member.

10.  There were other acts of merit.

11.  I was so closed to finishing my tour that it was unfair to give me a bad discharge.

12.  I had a prior Honorable Discharge.

13.  I have been a good citizen since discharge.

14.  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:

Statement from applicant
Copy of DD Form 214
Copy of certificate of appreciation dated September 11, 1992
Copy of certificate of commendation dated July 2, 1993
Copy of certificate of appreciation, undated
Copy of certificate of good conduct dated November 18, 1994
Copy of certificate in appreciation dated August 5, 2000
Eleven pages from applicant's medical record

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		911119 - 960222	HON
	Inactive: USMCR(J)		910123 - 911118	COG

Period of Service Under Review:

Date of Enlistment:  960223		Date of Discharge:  980924

Length of Service (years, months, days):

	Active:    02  07  02
	Inactive:  None

Age at Entry:  22			Years Contracted:  4

Education Level:  12			AFQT:  32

Highest Rank:  Cpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  NMF			Conduct:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, Certificate of Commendation, MM, Certificate of Appreciation, GCM, SSDR, HSM, 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. 6210.3.

Chronological Listing of Significant Service Events:

970402:	Counseled for deficiencies in performance and conduct.  [UA 60 minutes from appointed place of duty on 970326.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

971028:	NJP for violation of UCMJ, Article 91:
Specification: Insubordination toward a SNCO, MSgt on 0950, 6Oct97.
Awarded forfeiture of $100.00 per month for 1 month, reduction to LCpl.  Forfeiture and reduction suspended for 6 months.  Not appealed.

980226:	Vacate suspended reduction to LCpl.  Forfeiture remains suspended.

980325:	Copy of Criminal Investigation Division report found on microfiche.

980616:	NJP for violation of UCMJ, Article 134:
Specification: Indecent assault on 1930, 25Feb98, to wit: committed an indecent assault upon PFC a person not his wife by forcibly kissing PFC with the intent to gratify his lust.
Awarded forfeiture of $539.00 per month for 2 months, extra duties for 20 days.  Forfeiture suspended for 6 months.  Not appealed.

980813:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

980813:  	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.

980813:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  The factual basis for this recommendation was your discreditable service as evidenced by two nonjudicial punishments and adverse counseling entry on page 11 of your service record.  

980910:	SJA review determined the case sufficient in law and fact.

980910:	GCMCA [Commanding General, 2d Marine Aircraft Wing] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 980924 under other than honorable conditions for misconduct due to a pattern of misconduct (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 issues 1-5 state:  “Incompetent Representation.  Ignorance of legal rights. Violation of 6th Amendment Rights.  No DNA samples taken to prove innocence.  No witnesses allowed to support claims.”  The Board found the applicant was in fact represented by qualified counsel and that the applicant accepted NJP in order to escape a trial at Special Court Martial.  The Board found no violation of the applicant’s rights or any other improprieties.  Relief is denied.

The applicant’s issues 6-10 state:  “My conduct and efficiency ratings/behavior and proficiency marks were mostly pretty good.  I received awards and decorations.  I received letters of commendation.  My record of promotions showed I was generally a good service member.  There were other acts of merit.”  The NDRB found that the positive aspects of the applicant’s service were outweighed by his documented misconduct.  Relief on this basis is not warranted.

The applicant’s eleventh issue states:  “I was so closed to finishing my tour that it was unfair to give me a bad discharge.”  The NDRB found this issue without merit.  The record clearly documents a pattern of misconduct in the applicant’s enlistment.  The applicant had an obligation to abide by the UCMJ his entire enlistment.  Relief is denied.

The applicant’s twelfth issue states:  “I had a prior Honorable Discharge.”  The NDRB found this issue non decisional.  The applicant’s prior enlistment bears no relevance in the equity of the Other Than Honorable Discharge assigned after separation following his last enlistment..  Relief is denied.

The applicant’s thirteenth issue states:  “I have been a good citizen since discharge.”  The NDRB is authorized to consider post service conduct in the upgrade of the discharge, however the applicant failed to provide creditable documentation to support this issue.  Relief is not warranted.

The applicant’s fourteenth issue states:  “My record of NJP's/Article 15's indicates only isolated or minor offenses.”  The record shows that the applicant’s misconduct included two NJP’s, Insubordination and Indecent Assault, both of which are considered serious military offenses.  Relief on this issue is not warranted.

The applicant 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 91 (Insubordination) and Article 134 (Indecent 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