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

 ex-LCpl, USMC 
Docket No. MD03-00572

Applicant’s Request

The application for discharge review was received on 20030213.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requested an appearance at a traveling panel closest to Bronx, NY.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter, the Applicant was advised that the NDRB does not travel, all personal appearance hearings are held in the National Capital Region.  The Applicant was also advised that the Board first conducts a documentary record discharge review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20031229.  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 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 stated

Applicant’s issues, as stated on the application:

“1.  1st offense.  The command originally was only going to give office hours.  Find a replacement for me and to get me orders out to another duty station and finish contract.”

2.  The amount of money spent was paid back in full.

3.  The command lied to me and turned around and pushed for a court-martial.  When the legal office at Parris Island said my case did not warrant a court martial.

4.  The Colonel at 1st Marine Corps District at that point gave me office hours, busted to E-4 and fined $1200.00.  Then submitted my package for admin separation requesting I receive a “Gen’l Under Honorable”, but instead I received “Other Than Honorable.”

5.  “I, (Applicant), am writing to your offices in reference to my request that was submitted in September of 1997 requesting my discharge to be upgraded to General under Honorable Conditions. I have not heard from the Board for Correction of Naval Records nor the offices of the Navy Discharge Review Board on my request for my rank to have been reinstated back Corporal. Through my own fault of the misplacement of my documents from the time of discharge, I was not able to follow-up on my request sent to your offices.
    I would like to state in my defense for the record that I did accept responsibility for the error incurred on my part. I feel I was treated unjustly by the Commanding Officer of 1st Marine Corps District who initially was only going to give me office hours and immediately transfer me out to another unit.
    In my attachments submitted, you will read where the Officer in Command, Major M_, acknowledged although the offense was committed that he felt I would have been able to move on from this and still have continued a career in the Marines. Upon being notified by the Headquarters Commanding General’s legal office from Parris Island that my case did not warrant a Court Martial, the Commanding Officer of 1st Marine Corps District gave me office hours, busted me down a rank to E-4, fined me and then proceeded with an immediate administrative separation, all this after I had made restitution, had accepted responsibility and was led to believe that I was going to be reassigned back to regular unit. GySgt T_, who was serving his tour of duty at the time, was also under the impression and was told also that I would be reassigned out to a unit.
    The mere fact that, either office had not contacted me leads me to believe that my paperwork either got lost or misplaced or not given any thought. I would like for someone to please look over my applications and notify me as to the decision made. I am requesting a fair investigation to be made because this was my first and only offense in the 9 years that I served on active duty.”

Documentation

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

Copy of DD Form 214
DD Form 149 (2 pp.)
23 pages from Applicant’s service record

PART II - SUMMARY OF SERVICE

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

	Active:    USMC		880809 – 950329	HON
	Inactive: USMCR(J)		880630 - 880808	COG

Period of Service Under Review:

Date of Enlistment:  950330		Date of Discharge:  970801

Length of Service (years, months, days):

	Active:    02  04  03
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  51

Highest Rank:  Sgt

Final Enlisted Performance Evaluations:  All FITREPs were available for review.

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, MM (2), LoA (2), NDSM, GCM (w/1*), MUC

Days of Unauthorized Absence:  None

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:

960813:	NJP for violation of UCMJ, Article 86: UA from appointed place of duty, Ramada Hotel, Hazlett, NJ from 1130-1550, 960802.
Awarded forfeiture of $350.00 per month for 2 months.  Not appealed.

970502:	NJP for violation of UCMJ, Article 134: Fraudulent use of U.S. Government IMPAC Credit Card from Nov 96 through Jan 97.
Awarded forfeiture of $600.00 per month for 2 month(s), reduction to E-4.  Not appealed.

970612:	Applicant notified of intended recommendation for discharge under honorable conditions (general) by reason of misconduct due to the commission of a serious offense as evidenced by District level NJP held on 970502.  Applicant informed that the lowest possible characterization of service she could receive was under other than honorable conditions.

970613:	Applicant advised of her rights and having elected 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.

970616:	Commanding Officer recommended discharge under honorable conditions (general) by reason of misconduct due to the commission of a serious offense.  The factual basis for this recommendation was the District level NJP held on 970502.

970717:	SJA review determined the case sufficient in law and fact.

970717:	GCMCA [CG, MCRD/ERR] 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 19970801 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 1-5.  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 two occasions, one being for the commission of a serious offense.  The fact that the Applicant was punished for the serious offense and that she may have paid back her debt does not invalidate processing for administrative separation.  Despite the positive aspects of the Applicant’s record, her conduct falls short of that required for an honorable or under honorable characterization of service.  While she may feel that her command did not treat her fairly, the record clearly reflects her disregard for the requirements of military discipline and demonstrated that she was unfit for further service.  The evidence of record does not demonstrate that the Applicant should not be held accountable for her actions.  Further, there is no evidence that the command inequitably or improperly used its authority when it initiated separation proceedings.  The separation proceedings were reviewed and found sufficient in law and fact on 19970717.  Relief denied.

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 denied.

The Applicant is reminded that she remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of her discharge.  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 86, unauthorized absence; and Article 134, fraudulent use of a government credit card.

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