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

 ex-CAPT, USMCR
Docket No. MD02-00220

Applicant’s Request

The application for discharge review, received 020108, requested that the reason for the discharge be changed to RESIGN.  The applicant requested a personal appearance discharge review.  The applicant did not designate a representative on the DD Form 293.  In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020731.  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 narrative reason of the discharge shall not change.  The discharge shall remain: HONORABLE/RESIGN UNACCEPTABLE CONDUCT, authority: MARCORSEPMAN Par. 4102.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  I respectfully request that the narrative of discharge, line 28 on my DD-214, copy 4 be amended to read "resign", and that I be re-appointed an officer in the United States Marine Corps Reserve.  I respectfully submit that to characterize my service and reasons for leaving as "unacceptable" is both inaccurate, and unjust. On 14 November 1999, I discharged a shotgun into the deck of the guard shack of First Marine Corps District Headquarters through my own negligence.  I immediately reported my actions to a superior officer, and subsequently went to non-judicial punishment, which resulted in a letter of reprimand for firing a weapon through negligence, dereliction of duty, and conduct unbecoming an officer.  I accepted full responsibility for my behavior, and I likewise accept the consequences.  Nevertheless, the convening authority did not recommend me to stand a board of inquiry to determine whether I was fit to continue my service, nor did either my commanding officer or any higher authority ask me for my resignation over the incident.  When questioned about the incident by the investigating officer, I responded truthfully to all questions, even though I knew that this would contradict some of the things which I had said earlier, in my initial distress over the incident, thus leading to the final specification of conduct unbecoming.  While I recognize fully the seriousness of my actions, I feel that to characterize my service as unacceptable is to overlook the four and a half years of honorable and faithful service that I have given to the Corps and my country.  Moreover, the inclusion of this narrative has unjustly impacted on my life off of active duty, both in that I will have to explain the comment to future prospective employers, and keeping me from serving in the Marine Corps Reserves, a path for which my commanding officer enthusiastically recommended me.  With the recent attacks upon our country, and the need for trained military personnel to help defend our country in this crisis, I feel that I could provide meaningful and valuable service to the nation in the future.  I would ask the board to consider these arguments, as well as the enclosed letters of recommendation from my former superior officers, the current manpower needs of the Marine Corps Reserve, and the conflict in which we find our nation, in making its decision.  I do not deny my mistakes, but I would ask the board to consider whether it is just for my punishment to continue into my civilian and personal life in a way not directed by the convening authority, whether this incident should define the nearly five years of service which I have rendered, and whether I might not be able to render some service to my country in the future.  The Marine Corps has been and continues to be, the most important part of my life.  All that I want, all that I ask, is to be given the opportunity to continue to serve my country again.

Respectfully Submitted, (Signed by the Applicant)

Documentation

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

Copy of DD Form 214
BCNR letter dtd Aug 16, 2001 to the applicant
CO, 1ST Marine Corps District, Garden City, NY, First Endorsement dtd Dec 23, 1999
Character Reference letter from LtCol R.C. D_ to BCNR dtd 12 Mar 2001
Letter of Recommendation from Col T. K. K_ to BCNR dtd 15 Feb 2001
Separation Authority (3 pages) 

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: None

Period of Service Under Review:

Date of Commission:  950531	Date of Discharge:  000407

Length of Service (years, months, days):

	Active:  04  10  08
	Inactive:  None

Age at Entry:  22			

Education Level:  16			

Highest Rank:  CAPT

Final Officer Performance Evaluation Averages:  All officer fitness reports were available to the Board for review.

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR (2), NMCAM, LoA(2)

Days of Unauthorized Absence:  None

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

HONORABLE/RESIGN UNACCEPTABLE CONDUCT, authority:  MARCORSEPMAN Par. 4102.

Chronological Listing of Significant Service Events:

991221:	Applicant signed rights acknowledgment/statement under Article 31 Rights at NJP Hearing.  Requested Maj W_ be present at the hearing and have lawyer present during interview.  

991221:	NJP for violation of UCMJ, Article 92:  knew or should have known of  his duties on or about 13 Nov 99, and was derelict in the performance of those duties in that applicant willfully failed to wait at least eight hours following consumption of alcohol before acting in the capacity as Guard Officer, negligently failed to receive familiarization-firing of a government shotgun prior to arming himself with such weapon, and negligently failed to follow clearing procedures of the government shotgun, as it was his duty to do; violation of UCMJ Article 133: wrongfully and dishonorably on or about 13 Nov 99, consume alcohol within eight hours prior to acting in his capacity as Guard Officer, handle a government shotgun without prior familiarization-firing of the weapon, fail to follow clearing procedures of the government shotgun, negligently discharge a government shotgun within the First Marine Corps District Headquarters, request to Maj J_ P. S_, USMC, and Warrant Officer 2 K_ V. K_, USMC that they not report the negligent discharge, and did, on or about 14 Nov 99, make to Maj J_ P. S_ USMC, an official statement, to wit: "For the record sir, I was not drunk last night.  The one beer you saw me drink was the only beer I had prior to the incident," or words to that effect, which statement was totally false and was then known by the applicant to be so false, all such conduct unbecoming an officer and gentlemen; violation of UCMJ Article 134: discharging through negligence in that the applicant did on or about 13 Nov 99, through negligence, discharge a government shotgun within the First Marine Corps District Headquarters.
	Award:  Punitive letter of reprimand, forfeiture of $1605 pay per month for 2 months (suspended for period of six months).  Did not appeal NJP.

991221:	Punitive Letter of Reprimand issued to applicant.

991222:	Applicant voluntarily tendered his unqualified resignation for cause in lieu of processing for administrative separation for cause.

991223:	CO, 1st MCD, Garden City, NJ forwarded applicant's resignation for cause letter to the Secretary of the Navy recommending approval.

000103:	Applicant's statement in regards to letter of reprimand.

000106:	CG, MCRD/Eastern Recruiting Region report to the Commandant of the Marine Corps of applicant's non-judicial punishment.

000225:	Commandant of the Marine Corps recommended to the Secretary of the Navy approval of applicant's unqualified resignation request in lieu of administrative processing for cause and that the characterization of service be "honorable" and reason for resignation be "unacceptable conduct".

000320:	Assistant Secretary of the Navy (M&RA) approved applicant's discharge with an honorable by reason of resignation due to unacceptable conduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 000407 with an honorable due to resignation - unacceptable conduct (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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 (C and D).

Issue 1.  The applicant failed to convince the Board that his narrative reason for separation was inaccurate or unjust.  The applicant received non-judicial punishment and voluntarily tendered his unqualified resignation for cause in lieu of processing for administrative separation for cause.  No other narrative reason more clearly describes the circumstances surrounding the applicant’s discharge.  Relief denied. 

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.  There was no injustice in the separation authority’s direction that the applicant be separated by reason of resignation for unacceptable conduct.  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.  The applicant 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. Legal representation at a personal appearance hearing is highly recommended but not required.  

Pertinent Regulation/Law (at time of discharge)

A.  Chapter 4, Paragraph 4102 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E, effective 18 Aug 1995), PROCESSING FOR SEPARATION.

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