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

ex-2NDLT, USMC
Docket No. MD02-01305

Applicant’s Request

The application for discharge review, received 020912, 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030424.  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: GENERAL (UNDER HONORABLE CONDITIONS)/UNACCEPTABLE CONDUCT, authority:  SECNAVINST 1920.6B and MARCORSEPMAN Par. 4102.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  I was on active duty in the United States Marine Corps for almost twelve years.  In that time, I did not receive any disciplinary action in the form of a page 11 or through any legal proceedings.  I was meritoriously promoted to Corporal and I successfully completed the Marine Enlisted Commissioning Education Program.  I graduated in the top 10 percent of my Officer Candidate School class and I earned the rank of Staff Sergeant before I was commissioned.  I got in trouble with the civilian authorities in Stafford Country, Virginia that I still contend that I am innocent of those charges.  With no charges from the Marine Corps, I was discharged for unacceptable conduct with no severance pay or any other benefits.  If I had stayed an enlisted Marine and not made the attempt to better myself and my contribution to the Marine Corps, I would have been entitled to a board of inquiry, but I was an entry level officer, I was discharged without the opportunity to explain my situation in front of the men that discharged me.  I am a veteran of Desert Shield/Storm and I upheld the honor of the title Marine for the duration of my service and I continue to today.  I am asking that my discharge be upgraded to Honorable to reflect my twelve years of honorable service to my country.

Applicant check box "I have listed additional issues as an attachment to this application,"  however, no additional issues found.

Documentation

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

Character Reference letter from Applicant's civilian Attorney, J_ C. H_, LtCol, USMC, retired, dtd Apr 25, 2001
Letter of Recommendation to Retain Applicant from Maj J_ M. B_, USMC, dtd Mar 15, 2001
Letter of Recommendation to Retain Applicant from Capt J. D. K_, USMC, dtd Jan 10, 2001
Letter of Recommendation to Retain Applicant from Capt M_ A_, USMC, dtd Jan 9, 2001
Character Reference letter from Capt D_ J. C_, USMC, dtd Apr 26, 2001
Character Reference letter from J_ R. H_, BrHd, dtd Jan 7, 2001
Letter of Recommendation from Capt (sel) F_ A. J_, USMC, dtd Apr 7, 2001
Character Reference letter from 1stLt R_ K. M_, USMC, dtd Apr 10, 2001
Character Reference letter from 1stLt R_ H. E_, USMC, dtd Apr 11, 2001
Character Reference letter from 2ndLt K. R. H_, USMC, dtd Apr 6, 2001
Character Reference letter from 2ndLt M. A. N_, USMC, dtd Apr 6, 2001
Character Reference letter from 2ndLt M_ A. B_, USMC, dtd Jan 8, 2001
Character Reference letter from 2ndLt P_ B. E_, USMCR, dtd Jan 9, 2000
Character Reference letter from 2ndLt C_ R. B_, USMC, dtd Jan 10, 2001
Character Reference letter from 2ndLt J. L. W_, USMC, dtd Apr 26, 2001
14 Fitness Reports 
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USMCR(J)		900319 - 900408	COG
	Active:   USMC		900409 - 941020	HON
					941021 - 980202	HON
					980203 - 990318	HON

Period of Service Under Review:

Date of Commission:  990319		Date of Discharge:  020208

Length of Service (years, months, days):

	Active:  02  10  20
	Inactive:  None

Age at Entry:  28			Years Contracted:  6

Education Level:  16			AFQT:  90

Highest Rank:  2NDLT

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

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SWASM, KLM, MM, GCM (w/1*), SSDR, LoA (2), JSAM, JSCM, N&MCAM (2), CoC, JMUA 

Days of Unauthorized Absence:  None 

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

GENERAL (UNDER HONORABLE CONDITIONS)/UNACCEPTABLE CONDUCT,  authority:  SECNAVINST 1920.6B and MARCORSEPMAN Par. 4102.

Chronological Listing of Significant Service Events:

990319:	Accepted officer appointment to 2NDLT.

000716:	Applicant arrested and charged with three counts of indecent exposure.  [Extracted from Commandant, Marine Corps letter to the Secretary of the Navy, dtd 5 Dec 2001.]

001017:	Applicant found guilty of three counts of indecent exposures and sentenced to pay a $100 fine for each charge.  Applicant moved for a trial de novo in Stafford County Circuit Court.  [Extracted from Commandant, Marine Corps letter to the Secretary of the Navy, dtd 5 Dec 2001.]

010314:	Applicant found guilty of only 2 counts of indecent exposure by Stafford County Circuit Court and was sentenced to pay a fine of $400.  Since Applicant had already paid $300 pursuant to the District Court's sentence, he was required to remit an additional $100.  [Extracted from Commandant, Marine Corps letter to the Secretary of the Navy, dtd 5 Dec 2001.]

010628:	Commanding Officer, Basic School, Marine Corps Combat Development Command, Quantico, VA, recommended Applicant's retention in lieu of separation for misconduct due to civilian conviction of two counts of indecent exposure and failing to demonstrate acceptable qualities of leadership required of an officer in his grade when he lied to a police officer.  

010923:	President, Marine Corps University/Commanding General, nonconcurring with the CO, The Basic School, recommended to the Secretary of the Navy that Applicant be required to show cause for retention in the Marine Corps.  

011015:	CG, Training and Education Command, recommended Applicant be administratively separated as a probationary officer and his service be characterized as General (Under Honorable Conditions) and the Applicant be required to show cause for retention.

011031:	CG, Marine Corps Combat Development Command, concurring with the CG, Training and Education Command, recommended Applicant be separated under honorable conditions (general) and that he show cause for retention.

011205:	Commandant of the Marine Corps recommended to the Secretary of the Navy, Applicant's discharge under honorable conditions (general) due to unacceptable conduct. 

020103:	ASN (M&RA) approved Applicant's discharge, as recommended. 

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 020208 under honorable conditions (general) due to unacceptable conduct (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.  A characterization of service of under honorable conditions (general) is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by conviction in a civilian court for indecent exposure.  The Applicant’s conduct, which forms the primary basis for determining the character of his service falls short of that required for an honorable characterization of service.  The separation authority considered the Applicant’s overall service record in determining his character of service and the Board found no reason to overturn the presumption of regularity in this case.  An upgrade to honorable would be inappropriate.  While the Applicant claims he was innocent of the charges, the Board found no documentation explaining how or why he should be considered innocent.  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.  That the Applicant was afforded no right to an administrative discharge board or other board of inquiry in this case does not constitute an inequity or impropriety.  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.  Secretary of the Navy Instruction 1920.6B (ADMINISTRATIVE SEPARATION OF OFFICERS) effective 13 Dec 1999 until Present establishes policies, standards and procedures for the administrative separation of Navy and Marine Corps officers from the naval service in accordance with Title 10, United States Code and DoD Directive 1332.30 of 14 Mar 97.

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

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