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

 ex-LCpl, USMC
Docket No. MD02-00239

Applicant’s Request

The application for discharge review, received 020114, 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 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 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, as submitted

1.  The civilian judge wanted me to complete my service honorably and I would have if I hadn't been discharged early.  I have a probationary felony and it will be removed off my record at the completion of my probation.  The judge allowed me privileges to carry a weapon in the line of duty.  My local command wanted to be to complete my term of service and they allowed me to stay in the command from 12-11-00 to 6-4-01.  The entire command pushed for me to stay and finish my contract.  Even after my conviction, I still served 6 months of my contract.  I don't think this action taken was fair and I am requesting my discharge be changed.  I wasn't court-martialed, and the decision to administratively separate me was unfair.  If appearing before a board in person is a better way to receive justice, then please inform me and I shall do so.  Since my discharge I am working full time as an electrician and I am a full time college student.  Changing my discharge will not only help my future goals, but will also show justice being served.  I want to rejoin the armed forces more than ever and serve my country once again.

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		970213 - 970622	COG

Period of Service Under Review:

Date of Enlistment:  970623		Date of Discharge:  010504

Length of Service (years, months, days):

	Active:    03  07  06
	Inactive:  None

Age at Entry:  17			Years Contracted:  5

Education Level:  12			AFQT:  63

Highest Rank:  Cpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.3 (2)			Conduct:  2.0 (2)

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, MM(2ND), LOA, Rifle Shooter Badge

Days of Unauthorized Absence:  98

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:

990112:	NJP for violation of UCMJ, Article 91: (2 Specs), Spec 1: Insubordinate conduct in that LCpl H_ used insubordinate language on 981215, to Sgt J_, an NCO, then known to him to be an NCO; Spec 2: Insubordinate conduct in that LCpl H_ used insubordinate language on 981215, to Sgt J_, an NCO, then known to him to be an NCO.
	Award:  Forfeiture of $537.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  Not appealed.

990728:	Counseled for deficiencies in performance and conduct.  [Inappropriate conduct on 990704.  Applicant’s actions on this date were a direct result of a state of intoxication.  Furthermore, it is in violation of Base Order P5300.13A for underage drinking.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. 

001108:	Civil Conviction:  [Vista Municipal Court] for violation of California penal code 459, Residential Burglary, which is a 2nd degree Felony.
Sentence: Served 146 days.  Probation hearing date, 001211: Granted 3 years formal probation, fined $250.00 plus penalty assessment, restitution fine of $200.00, restitution fine to victim of $240.06 at $40.00 a month.

001219:	NJP for violation of UCMJ, Article 86: UA from HMLA-369 bldg 2386 on 000904 to 001211 (98 days).
	Award:  Reduction to E-3.  No indication of appeal in the record.

001219:	Counseled for deficiencies in performance and conduct.  [Unauthorized absence from 000904 to 001211.  Poor judgement, misconduct, and intoxication on the night of 000903 were the causes for civilian confinement for 98 days.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. 

010226:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

010227:	Applicant advised of 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.

010328:	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 applicant’s guilty plea at Vista Municipal Court, for penal code 459, Residential Burglary, which is a Felony.

010418:	SJA review determined the case sufficient in law and fact.

010501:	GCMCA [Commanding General, 3d Marine Aircraft Wing] 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 010504 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).

Issue 1.  The applicant committed a serious offense as defined by reference (A).  Conviction at a court martial is not required for administrative separation under this provision.  The fact that the applicant served for six months following this offense does not mitigate his misconduct.  Additionally, the fact that he was placed on probation by civil authorities did not preclude separation by the military.  Relief denied.

The NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  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.  Relief denied.

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.  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 86, unauthorized absence for more than 30 days; Article 129, burglary.

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