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

 ex-LCpl, USMC
Docket No. MD02-00123

Applicant’s Request

The application for discharge review, received 011018, 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 020715.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned an impropriety and an inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character and narrative reason shall change.  The discharge shall change to: UNDER HONORABLE CONDITIONS (GENERAL)/ SECRETARIAL AUTHORITY, authority:  MARCORSEPMAN Par. 6214.  In addition, the separation code shall change to JFF1.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  In March 1997, I was arrested as a result of an incident that occurred at a party (see Document #4).  I was eighteen years old at the time.  When the case was reviewed by a Superior Court Judge, the charges against me were dismissed due to insufficient evidence.

In 1998, I started the process of enlisting into the Marine Corps.  At that time, I fully disclosed all information on the above incident.  After review by various levels of authority in Marine Corps Recruiting, I was granted a waiver and entered the Marine Corps on January 3, 1999.  After completing my recruit training at MCRD San Diego, I attended and completed both the Marine Combat Training Course and the Assault Amphibian Basic Crewman Course at Camp Pendleton.

Shortly after being assigned to the Third Assault Amphibian Battalion at Camp Pendleton, I learned that my case had been overturned on appeal and that I would be going to trial.  Throughout the trial, I continued to fulfill my duties as a Marine and was even promoted to Lance Corporal.  While I feel I am innocent, the trial resulted in a guilty verdict.

Since my discharge, I have worked full time, obtained my High School Diploma and continued my education at the local community college.  I have also worked in the community by helping the local Little League.  Other than the one incident above, I have no other criminal record.  I come from a family that has a Marine Corps tradition dating back to 1933 and a Law Enforcement tradition dating back to 1940.  Prior to this incident, I was a Police Explorer with the Los Angeles Police Department and had planned to someday make a career in law enforcement.

The issue that I am submitting to the Discharge Review Board is that my discharge is improper.  I base this on the fact that during my time in the Marine Corps, I did my duty and served with honor.  I did nothing to dishonor the Marine Corps.  I entered the Marine Corps believing that I had been exonerated on the criminal case and the Marine Corps accepted me with full knowledge of the incident.  When I processed out of the Marine Corps, my Battalion Commander told me that I would be receiving a General Discharge under Honorable Conditions.  I respectfully request that my discharge be changed to an Honorable Discharge and that by discharge code be changed to an R- 1.

I was proud to serve in the Marine Corps and hope to have the opportunity to re-enter to complete my commitment to this great nation.  I have been trained and I am ready to serve my country, with honor, in this time of great need.

Documentation

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

Copies of DD Form 214 (2)
Character Reference Letters (2)
Letters of Recommendation (2)
Letter to General J_ J_ from Applicant's Father (4 pgs)
Reference Letter from 1st Lt W_ B_, USMC (2 pgs)
Reference Letter from SSGT A_ J. Q_

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		980912 - 990103	COG

Period of Service Under Review:

Date of Enlistment:  990104		Date of Discharge:  000326

Length of Service (years, months, days):

	Active:    01  02  23
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  12			AFQT:  46

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4  [Extracted from CO's msg] 	Conduct:  4.4  [Extracted from CO's msg]

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Sharpshooter Badge, GCM

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. 6210.6.

Chronological Listing of Significant Service Events:

970302:	Applicant was involved in a crime that resulted in the death of another civilian [Extracted from CO's msg].

970302:	Charges referred to the district attorney, and dismissed.  The case never went to court before a judge [Extracted from CO's msg].

980912:	Applicant enlisted in the Marine Corps and was granted a waiver for police involvement.  Since he had no conviction and no pending charges at the time, there was no reason to not allow enlistment [Extracted from CO from CO's msg].

990514:	Applicant assigned to Assault Amphibian School Battalion as a student to become an AAV crewman [Extracted from CO's msg].

991001:	Applicant indicted on the charges from the 970302 incident because of new evidence [Extracted from CO's msg].
 
991107:	Civil Felony Conviction:  [Los Angeles County Superior Court] for conspiracy to commit a crime (assault) and burglary (breaking and entering).
Sentence:  5 years in state prison, serve 1 year, 4 years probation [Extracted from CO's msg].

000214:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

000214:	Applicant advised of rights and having elected to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

000215:	Commanding Officer recommended discharge general under honorable conditions by reason of misconduct due to the commission of a serious offense.  The factual basis for this recommendation was applicant’s documented felony conviction by Los Angeles County Superior Court.  

000216:	Returned to custody of the Los Angeles County Jail to serve 1 year sentence with 4 years of probation.

000301:	SJA review determined the case sufficient in law and fact [Extracted from CO's msg in case file].

000306:	GCMCA [Commanding General] 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 000326 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 improper and inequitable (D and E).

Issue 1.  The Board found the applicant was improperly discharged for misconduct by reason of the commission of a serious offense.  Since this misconduct occurred prior to the commencement of the applicant’s military service, the proper basis for the applicant’s involuntarily separation was misconduct due to a civil conviction.  Therefore, the Board voted unanimously to change the discharge characterization to under honorable conditions (general) and change the reason for discharge to Secretarial Authority.

The Board found that due to the applicant’s service record while on active duty, his characterization of service is more equitably characterized as under honorable conditions (general).  Despite the applicant’s proficiency and conduct evaluations, the Board found that given the short period of time he served prior to his civil felony conviction, which precluded the applicant from completing his enlistment, that his service cannot be characterized as honorable.  Partial relief is therefore granted.

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 based upon post-service conduct.  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.  

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 31 January 1997 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 81, conspiracy; 130, housebreaking.

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