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

ex-LCpl, USMC
Docket No. MD02-01205

Applicant’s Request

The application for discharge review, received 020823, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed.  The applicant requested a documentary record discharge review.  The applicant designated the Disabled American Veterans organization as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030522.  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

Submitted by DAV:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United states and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current Other Than Honorable Discharge to that of Honorable.

The FSM served on active service from August 22, 1994 to March 16, 2001 at which time he was discharged by reason of Misconduct.

The FSM contends the current discharge is improper because there evidence of not only good conduct, but of prior honorable service as supported by the enclosed citations.  Additionally, if proper consideration had been given to the five years of prior honorable service, the command at that time could have awarded a General Discharge.

This creates a need for a review of the application of the standard, for the Board to determine that the applicant's discharge was improper.  The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted.  See, SECNAVINST 5420.174(C), Par. (f) (l).

In continuance, the FSM goes onto explain that the discharge was the choice of the commander, as they provided no assistance or counseling when the FSM had previously requested a hardship discharge.

As the representative, we ask that consideration be given to equitable relief, as this is a mater that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the applicant submits to the Board's discretionary authority, under SECNAVINST 5420.174c.

Under the premises of equitable relief, we believe the Board can change the discharge to reflect a General discharge, and leave that to a determination by the Board.

We ask for the Board's careful and sympathetic consideration of all the evidence or 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 Explanation of the situation (2 pages)
Virginia Employment Commission letter for Benefit Year Ends - June 7, 2003
Certificate of Good Conduct 1st Award (22 Aug 94 - 21 Aug 97)
Memo from CWO3 F_ A. F_ to Capt S_ C. L_ dtd Feb 13. 2001
Agreement to Business Partners dtd Aug 20, 2001
DON CAF Washington, DC's MSG 021754Z APR 98
Character Reference ltr from Sr. Pastor R._ H_, Majesty International Center dtd Feb 12, 2001
Certificate of Reenlistment dtd Nov 17, 1999
E-Mail communication between Transitional Compensation Program Manager to Applicant dtd 1 Jul 2002 concerning Applicant's dependents
Applicant's second DD Form 293
Custody/Visitation Order dtd Aug 19, 2002

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		940822 - 991116	HON
	Inactive: USMCR(J)		940129 - 940821	COG

Period of Service Under Review:

Date of Enlistment:  991117		Date of Discharge:  010316

Length of Service (years, months, days):

	Active:    02  06  00 (Doesn't exclude lost/confinement time.)
	Inactive:  None

Age at Entry:  23			Years Contracted:  4 

Education Level:  12			AFQT:  85

Highest Rank:  Sgt

Final Enlisted Performance Evaluation Averages:  All enlisted performance reports were available to the Board for review.

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR(2), GCM, NDSM, LoA(3), Sharpshooter Rifle Badge

Days of Unauthorized Absence:  00

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:

991117:	Reenlisted at MWCS38 MACG38 3DMAW, MCAS, Miramar, CA, for a term of 4 years.

000116:	Applicant arrested by San Diego police department for Spousal Assault.  Applicant remained in custody until 000119.  [EXTRACTED FROM CO, HQTRS CO MWCS-38 LTR OF 16 NOV 00.]

000110:	Applicant was sentenced to 3 years probation, 1 year Domestic Violence Rehabilitation Program course, $100 fine payable to the victims restitution fund, and $200 fine payable to the Domestic Violence fund.  [EXTRACTED FROM CO, HQTRS CO MWCS-38 LTR OF 16 NOV 00.]

000228:	Counseled for deficiencies in performance and conduct [engaging in spousal domestic violence, specifically you were arrested by the San Diego police department on 000116 for Spousal Assault and incarcerated in San Diego County jail until 000119, found guilty of misdemeanor, directed to enroll and complete 52 week spousal abuse program and show proof of class enrollment to the court on 000208].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. 

000525:	Applicant issued a "Military Protective Order" from the CO, HQ Company, MWCS-38, because of a domestic disturbance on 24 May 00 instructing him to remain away from his spouse.  Required to reside in the Bachelor Enlisted Quarters until matters resolved.

000705:	Applicant apprehended by Military Police for domestic assault, which member was involved in on 2 Jul 2000.  In hands of civilian authorities.  Applicant was taken into custody by the San Diego Police Department on a felony warrant stemming from a domestic violence case that occurred on 2 July 2000.  [EXTRACTED FROM CO, HQTRS CO MWCS-38 LTR OF 16 NOV 00.]

000706:	Application charged with violation of article 92, failure to obey order or regulation of UCMJ.  [EXTRACTED FROM CO, HQTRS CO MWCS-38 LTR OF 16 NOV 00.]

000708:	Applicant arrested by San Diego police department for (1) communicating a threat, (2) spousal assault, (3) unauthorized entry.  Applicant remained in custody from 000708 until 000816. [EXTRACTED FROM CO, HQTRS CO MWCS-38 LTR OF 16 NOV 00.]

000816:	Applicant was sentenced by civilian courts for spousal abuse and battery.  Sentence consisted of 180 days custody, a 52 week Domestic violence recovery Program course, 4 AA meetings a week for 180 days, $100 fine payable to the victims restitution fund, $200 and payable to the Domestic Violence Recovery fund. [EXTRACTED FROM CO, HQTRS CO MWCS-38 LTR OF 16 NOV 00.]

001019:	NJP for violation of UCMJ, Article 86:  Unauthorized absence from 0730, 000710 o 0730, 001010; violation of UCMJ, Article 90: Assaulting or willfully disobeying superior commissioned officer: in that Sgt C_(Applicant) did at Mister O's Nightclub on 2 Jul 2000, and at MCAS Miramar on or about 8 Jul 2000 having knowledge of lawful command issued by CWO3 D_ to wit: MPO dtd 25 May2000, willfully disobey by wrongfully coming within 500 ft of his wife.
	Award:  Forfeiture of $796 per month for 3 months, restriction and extra duty for 45 days, reduction to E-4.  Appeal submitted 001025.  Appeal denied 001114.

001213:	NJP for violation of UCMJ, Article 86:  Unauthorized absence, in that  on or about 11 Dec 00, Cpl C_ (Applicant) did absent himself from his work place.
	Award:  Restriction and extra duty for 14 days (suspended for 6 months).  No appeal.

001117:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct and due to commission of a serious offense as evidenced by civilian arrest on 8 Jul 200 for charges of communicating a threat, spousal abuse and 3 counts of unauthorized entry.

001117:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

001128:	Commanding Officer, CO, Marine Wing Communications Squadron 38, recommended discharge under other than honorable conditions by reason of misconduct due a pattern of misconduct and misconduct due to the commission of a serious offense.  

010214:	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 patter of misconduct and misconduct due to the commission of a serious offense, warranted separation, and recommended discharge under other than honorable conditions.

010306:	SJA review determined the case is legally sufficient.

010308:	GCMCA [CG, 3D MAW, San Diego, CA] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to a pattern of misconduct with the misconduct due to commission of a serious offense as the primary bases to appear on the DD Form 214.  Additionally, directed Applicant be reduced in pay grade E-3, Lance Corporal, effective date of separation.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 010316 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:  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.  The Board agrees the Applicant had very good evaluations throughout his tenure in the Marine Corps, but his performance prior to the misconduct does not mitigate his many offenses.  The record is void of any evidence that the Applicant was not responsible for his conduct, he was treated unfairly or that he should not be held accountable for his actions. While he may feel that his marriage and family problems contributed to his actions, the record clearly reflects his disregard for the requirements of military discipline and demonstrated that he was unfit for further service.  His service record is marred by award of non-judicial punishment (NJP) on two separate occasions and frequent involvement with domestic violence, thus substantiating the misconduct.  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 conduct falls short of that required for a general (under honorable) characterization of service.  An upgrade to general would be inappropriate.  Relief denied. However, the NDRB did note an administrative error on the original DD Form 214 and corrected it to reflect the Applicant’s previous five years of honorable service.   

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, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.   At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.  Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Representation at a personal appearance hearing is 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 [ e.g., Article 86, unauthorized absence for more than 30 days].

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