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

ex-LCpl, USMC
Docket No. MD01-00993

Applicant’s Request

The application for discharge review, received 010730, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  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 020215.  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 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

1.  I believe my discharge was inequitable because it was based on one incident, serious as it was, without taking into account the mitigating factors involved in the incident.  The incident mentioned above is my pleading guilty to both felony and misdemeanor breaking and entering charges.  I joined the USMC three months after turning seventeen.  A young start.  I went through my schools for aviation maintenance at or near the top of class standings.  After completing my schools, I was stationed at MCAS Cherry Point.  I arrived after my squadron was deployed to SWA.  I met a corporal who took me under his wing and showed me the "ropes". It was nice having a NCO to learn from unfortunately he taught me more than he should have.  He came up with the idea of breaking into public storage units by cutting the pad locks.  I'm not trying to lay the blame off on the corporal, just stating how the offenses began.  We worked together breaking into the units and splitting the proceeds.  We were caught and arrested, I arranged for a deal to return all items in exchange for leniency.  Thankfully the court agreed and I was sentenced to probation and discharged from the USMC.  While I agree with the decision to discharge me, I don't agree with the type of discharge I have paid for these mistakes graciously, but the condition of my discharge still impedes my level of success some ten year later.  Please don't let a mistake by a stupid kid cast a gray cloud over an otherwise upstanding citizen.

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)		891118 - 900225	COG

Period of Service Under Review:

Date of Enlistment:  900226			Date of Discharge:  920207

Length of Service (years, months, days):

	Active:    01  11  12
	Inactive:  None

Age at Entry:  17 Parental consent		Years Contracted:  5

Education Level:  12				AFQT:  86

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.5 (3)			Conduct:  4.3 (3)

Military Decorations:  Rifle Expert Badge

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  3

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:

910405:	Applicant arrested by civilian authorities.  Charged with larceny and breaking and entering.  Court date 911008.

911008:	Applicant convicted in civil court of 52 counts of misdemeanor breaking and entering.
	Sentence: Confinement for 10 years, pay restoration of $7,500.00.  Confinement suspended and placed on supervised probation for 5 years.

911212:	Counseled for deficiencies in performance and conduct.  [Your conviction by civilian authorities on 911108, misdemeanor of breaking and entering].  Applicant advised that conviction will result in processing for an administrative separation.

911223:	Applicant notified of intended recommendation for discharge under condition other than honorable by reason of misconduct due to civilian conviction.

911224:	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.

911230:	Commanding officer recommended discharge under condition other than honorable by reason of misconduct due a civilian conviction.  The factual basis for this recommendation was your convictions in the General Court of Justice, Superior Court Division of the State of North Carolina.  You were sentenced to 10 years imprisonment for breaking and entering. 

920129:	SJA review determined the case sufficient in law and fact. 

920129:	GCMCA [Commanding General, 2d Marine Aircraft Wing] 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 920207 under conditions other than honorable for misconduct due to a civilian conviction (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).

Issue 1.  The applicant implies that a permissive doctrine exists whereby one in the military is allowed a “single misdeed”.  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.  The Board will not grant relief on the basis of this issue.

The applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the applicant’s enlistment.  Additionally, 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 civilian life, subsequent to leaving the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct.  The applicant did not provide sufficient documentation to warrant an upgrade to his discharge.  He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210, Misconduct, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 27 Jun 890627 until 17 Aug 95. 

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 121, larceny.

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 “afls10.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