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

  ex-LCpl, USMC
Docket No. MD03-00649

Applicant’s Request

The application for discharge review was received on 20030227.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed.  The Applicant requests a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040205.  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 and reason for discharge 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 CONDITIONS OTHER THAN HONORABLE/Misconduct-Civilian Conviction (admin discharge board required but waived), authority: MARCORSEPMAN Par. 6210.7.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1.  Since the time of my discharge from the military I have not been in any sort of trouble.  I have maintained employment almost continuously.  I currently run a truck driving school in Deming, NM for international schools of Sunland Park, NM.
I am the lead instructor.

At the time of my civilian conviction I was married to S_ H. M_ from state of Alabama.  She was very instrumental in the actions in which I was charged for but suffered no consequences for her actions or her influence upon me.  I took the fall for her in order to protect what was then my wife who shortly after my conviction filed for a divorce

At the current time I am trying to become a Law Enforcement Officer.  I am now very responsible and mature and want to do my part in serving my community.  The department I will be applying to are the Deming Police Department and the Luna County Sheriffs Department both in Deming, NM.”

Documentation

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

Employment Reference Letter dated February 21, 2003
Letter of Recommendation dated February 11, 2003
Employment Reference Letter dated February 5, 2003
Copy of DD Form 214
Police Record Search Letter dated March 19, 2003

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		880628 - 890628	COG

Period of Service Under Review:

Date of Enlistment:  890629		Date of Discharge:  920113

Length of Service (years, months, days):

	Active:    02  06  15
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  31

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.8 (8)			Conduct:  3.9 (8)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Sharpshooter Badge, Pistol Marksmanship Badge, NDSM 

Days of Unauthorized Absence:  None 

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

UNDER CONDITIONS OTHER THAN HONORABLE /Misconduct-Civilian Conviction (admin discharge board required but waived), authority:  MARCORSEPMAN Par. 6210.7

Chronological Listing of Significant Service Events:

910729:	Applicant convicted in District Court, Onslow County, Jacksonville, NC for numerous counts of uttering worthless checks.
	Sentence: 6 months in North Carolina Department of Corrections.

911008:	Applicant notified of intended recommendation for discharge under conditions other than honorable by reason of misconduct due to civilian conviction.

911120:  	Applicant advised of his 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.
	
911125:	Commanding Officer recommended discharge under conditions other than honorable by reason of misconduct due to a civilian conviction.  The factual basis for this recommendation was the respondent’s civil conviction on 910729 in the District Court, Onslow County, Jacksonville, NC for numerous counts of uttering worthless checks. 

911216:	SJA review determined the case sufficient in law and fact.

911217:	GCMCA [Commanding General, 2d Marine Division] directed the Applicant's discharge under conditions other than honorable by reason of misconduct due to civilian conviction.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19920113 under conditions other than honorable for misconduct due to a civilian conviction (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 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 his civilian conviction.  No other narrative reason more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation.  While the Applicant may feel that his wife was a factor that contributed to his actions, the evidence of record does not demonstrate 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.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity occurred 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.  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, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that may be provided to receive consideration for relief, based on post-service conduct.  The Applicant’s evidence of post-service conduct was found not to mitigate the offense for which he was discharged.  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, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 27 Jun 890627 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, worthless checks.

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