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

  ex-LCpl, USMC
Docket No. MD03-00127 

Applicant’s Request

The application for discharge review, received 20021025, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to secretarial authority.  The Applicant requested a documentary record discharge review.  The Applicant listed Civilian Counsel as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20030926.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the character and narrative reason of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Commission of a serious offense (all other) with admin discharge board, authority: MARCORSEPMAN Par. 6210.6.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.	Whether Applicant’s psychiatric conditions so contributed to his alleged misconduct that an administrative separation board for misconduct was inappropriate.
2.	Whether Applicant’s past service conducts has demonstrated that the inservice psychiatric conditions was the basis for alleged misconduct.
3.	Whether Applicant’s past service conducts warrants clemency.

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		840709 - 870804	HON
	Inactive: USMCR(J)		840328 - 840708	COG

Period of Service Under Review:

Date of Enlistment:  870805		Date of Discharge:  910409

Length of Service (years, months, days):

	Active:    03  08  04
	Inactive:  None

Age at Entry:  20			Years Contracted:  6 

Education Level:  11			AFQT:  70

Highest Rank:  SGT

Final Enlisted Performance Evaluation Averages (number of marks): Enlisted performance reports were available to the Board for review through 901220.

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR(w1*), GCM(w1*), NDSM, Rifle Expert Badge, Pistol Sharpshooter

Days of Unauthorized Absence:  None

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

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

Chronological Listing of Significant Service Events:

870805:	Reenlisted at HQSVCO, 3DBN, 3DMAR, 1ST MAB for 6 years.
	
870806:	Counseled for deficiencies in performance and conduct.  [Conduct unbecoming of a NCO and bad attitude.  When told to do something by a senior NCO, no derogatory comments are needed or desired, especially in front  of junior troops.  Conduct of this nature is prejudicial to good order and discipline in this Bn].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

910213:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

910215:	Applicant advised of his rights and declining to consult with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

910215:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to the commission of a serious offense, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

910222:	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 Sergeant W_ was convicted on 2 counts of Indecent Exposure on 16 May 1990.  He subsequently was awarded 60 days custody, a $500.00 fine and placed on 2 years probation.  During SNM probationary period he has been charged with allegedly committing additional indecent exposure offenses.

910327:	SJA review determined the case sufficient in law and fact.

910328:	GCMCA [Commander, MCRD/WRR San Diego] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

910613:	Memorandum for the Record: Disposition of Investigative Material related to Separation from the Marine Corps of Former Sergeant B_ K. W_.  

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19910409 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.  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 a civil conviction for the commission of a serious offense.  No other narrative reason more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation.  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 Board found that the Applicant’s age, education level, and test scores qualified him for enlistment.  While he may feel that his psychiatric condition was a factor that contributed to his actions, and despite the positive aspects of his military service, the record clearly reflects his disregard for the requirements of military discipline and demonstrated that he was unfit for further 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.  Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country.  The discharge proceedings, to include the conduct of his administrative discharge board, was both 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 134, indecent exposure.

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