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

 ex-PFC, USMC
Docket No. MD02-01009

Applicant’s Request

The application for discharge review, received 020708, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a personal appearance discharge review before a traveling panel closest to [left blank].  The Applicant listed the Disabled American Veterans as the representative on the DD Form 293.  In the acknowledgement letter to the Applicant, was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington, D.C. 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 030331.  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 – Commission of a serious offense (all other) admin discharge board required but waived, authority: MARCORSEPMAN Par. 6210.6.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1  Unjust punishment of NJP's and situations

2.  Change of Admin Board without my knowledge

3.  Unjust Discharge

4.  Dear Chairperson:

After a review of the Former Service Member (FSM) DD Form 293 Application for the Naval Discharge Review Board of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we continue to support the contentions as set forth by the Applicant, in his request that he be given the opportunity to upgrade his (Under Other Than Honorable Conditions) Discharge to a Honorable Discharge.

The (FSM) entered the Navy Military Service on August 15, 1990 until June 15, 1994 a period of (4) years.  During this period of military service the (FSM) established a history of several offenses and was charged under the UCMJ of Non-Judicial Punishments.  The (FSM) was charged with severe violation of indecent assault on a female marine and then immediately following the attack made continued threatening statements to the victim as well as being charged with not manifesting professional conduct and standard outside of the work place.

The (FSM) acknowledges his past negative behaviors he exhibited in his term of service that subsequently lead to his OTH discharge, he now feels these actions can be personally attributed to immaturely and inability to handle the stressful military life that lead him to act out in inappropriate ways on active duty.  The (FSM) claims he is now accepting full responsibility for his negative behaviors and asks for the board's and victim's forgiveness for his prior actions.

The (FSM) now respectfully requests an equitable standard be applied as well as equity in treatment  in seeking the boards' approval to afford him the opportunity to receive and an up-grade of his General (Under Other Than Honorable) Discharge to an Honorable Discharge.  The (FSM) sincerely hopes that by respectfully requesting and being granted an Up-grade of his Discharge and citing the reasons for his past violations of the military service rules and policies and his subsequent dismissal from the US Marine Corp will have some hearing on the panels decisions.

The (FSM) feels his military accomplishments of service are a matter of Supreme Honor and Respect he will cherish throughout his lifetime.  The (FSM) also states he had always tried to achieve Honor and Respect during his almost entire term of enlistment of military duty in the Navy Service, but just failed on this short period of enlistment.

We respectfully request that the (FSM) be given complete and duly consideration by the board.  We also respectfully request that the board consider each reasonable explanation submitted by the (FSM) who now wishes to seek to correct the mistakes he make and the negative behavior he exhibited and that occurred to him in fulfill his military duty in the United States Marine Corp.

We ask for the Boards careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the Applicant. 

Documentation

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

Applicant's DD Form 214
Twenty-eight pages from Applicant's service record

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		890923 - 900814	COG

Period of Service Under Review:

Date of Enlistment:  900815		Date of Discharge:  940615

Length of Service (years, months, days):

	Active:    03  10  01	Does not exclude lost time
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  53

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (12)			Conduct:  4.2 (12)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, Letter of Appreciation, MM, SSDR with 1 Star, HSM

Days of Unauthorized Absence:  5

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct-Commission of a serious offense (all other) admin discharge board required but waived, authority:  MARCORSEPMAN Par. 6210.6.

Chronological Listing of Significant Service Events:

930507:	Counseled for deficiencies in performance and conduct.  [Received speeding ticket 930211 from NC Highway Patrol while driving a government vehicle in excess of posted speed limit (70 mph in 55 mph zone).]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. Applicant refused to sign statement.

930623:	NJP for violation of UCMJ, Article 92:
Specification: Violate a lawful written order on 0645, 930617, to wit: MCO 1020.34, Marine Corps Uniform Regulations, by wearing ear rings.
Awarded forfeiture of $501.00 per month for 2 months, restriction and extra duties for 45 days.  Forfeiture of $501.00 for 1 month and restriction for 45 days suspended for 6 months.  Not appealed.

931103:	Vacate suspended forfeiture of $501.00 and restriction for 45 days.

931103:	NJP for violation of UCMJ, Article 86:
Specification: Unauthorized absence from 0730, 931025 to 1145, 931030 (5 days).
Awarded forfeiture of $200.00 per month for 1 month, extra duties for 7 days.  Forfeiture of $200.00 suspended for 6 months.  Not appealed.

940105:	NJP for violation of UCMJ, Article 134 (3 specs):
Specification 1: Commit an indecent assault upon PFC on 1830, 931222, to wit: grabbing her right breast.
Specification 2: Commit an indecent assault upon PFC on 2230, 931222, to wit: grabbing her posterior.
Specification 3: Communicate a threat against PFC on 2230, 931222, to wit: by saying "I won't tell you when I’m coming."
Awarded forfeiture of $450.00 per month for 2 months, restriction for 60 days, reduction to PFC.  Appealed.  Appeal denied 940127.

940316:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due a pattern of misconduct and the commission of a serious offense.

940317:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

940422:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to a pattern of misconduct and the commission of a serious offense, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.  Recommended the separation be suspended for six months.

940511:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and the commission of a serious offense.  The factual basis for this recommendation was Applicant's recurring episodes of misconduct resulting in three NJP's. 

940519:	SJA review determined the case sufficient in law and fact.

940615:	GCMCA [Commander, 3d Marine Division] 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 940615 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).

Issues 1, 3-4.  A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a Marine.  The Applicant’s service was marred by award of nonjudicial punishment (NJP) on three occasions and an adverse counseling entry on another occasion.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service.  The record is devoid of evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Despite the positive aspects of the Applicant’s record, an upgrade to honorable would be inappropriate.  It must be noted that most Marines serve honorably and well and therefore earn honorable discharges.  In fairness to those Marines, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due.  The evidence presented by the Applicant failed to convince the Board that the charges which resulted in NJP, the punishment awarded by those NJPs, the findings of the Administrative Discharge Board, and the decision made by the separation authority were improper or inequitable.   Relief denied.

Issue 2.  The Board failed to discern an impropriety or inequity in the assignment, composition, or conduct of the Applicant’s Administrative Discharge Board.  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 inequity must have existed during the period of enlistment in question.  No such error or inequity is evident 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 not warranted.

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.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210, Misconduct The Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 27 Jun 89 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 86, unauthorized absence; Article 92, failure to obey a lawful general order; 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