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

  ex-PFC, USMC
Docket No. MD03-00883

Applicant’s Request

The application for discharge review was received on 20030422.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing before the Board in the Washington National Capital Region.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040401.  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: GENERAL (UNDER 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:

“I.  Private First Class D_ (Applicant) was separated in violation of Para. 6214.1 of MCO P.1900.16 (MARCORPSEPMAN) which permits SECNAV to overturn admin board recommendations in cases which are “unusual.” Document 3 contains a complete discussion of the rule and the way it was breached in this case.

II.  Private First Class D_ (Applicant) was unfairly separated after an impartial board voted 3-0 for retention because his good military character and devoted service outweighed his misconduct. Document 1 is a letter from his immediate supervisor. Document 2 contains the summarized testimony of the numerous witnesses who testified regarding good military character on respondent’s behalf and it also contains the impartial opinion of the board who evaluated all of the evidence from both sides and made a decision to recommend retention.”

Documentation

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

Character reference from GySgt, dated March 6, 2003
Thirteen pages from Applicant’s service record
Applicant’s DD Form 214
Technical Certificate in Computer Assisted Design, dated May 11, 2001

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		980701 - 980712	COG

Period of Service Under Review:

Date of Enlistment:  980713			Date of Discharge:  020712

Length of Service (years, months, days):

	Active:    04  00  00
	Inactive:  None

Age at Entry:  17 Parental Consent		Years Contracted:  4

Education Level:  12				AFQT:  49

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (7)				Conduct:  4.2 (7)

Military Decorations:  None

Unit/Campaign/Service Awards:  Certificate of Appreciation, NDSM, MUC

Days of Unauthorized Absence:  None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.6.

Chronological Listing of Significant Service Events:

000111:	NJP for violation of UCMJ, Article 107:
Specification: With intent to deceive investigator on 0920, 991110, to wit: made false official statement by saying he told only Pvt B_ about the number.
Violation of UCMJ, Article 121:
Specification: Tell investigators that he had stolen LCpl M_’s pin number from her computer to make unauthorized phone calls on 0920, 991110.
Violation of UCMJ, Article 134:
Specification: Tell investigators that he had used LCpl M_’s pin number to obtain internet and phone access under false pretenses on 0920, 991110.
	Award: Forfeiture of $273 per month for 1 month, restriction and extra duty for 14 days.  No indication of appeal in the record.

010613:	Applicant’s sworn statement to Criminal Investigation Division.

011102:	NJP for violation of UCMJ, Article 80:
Specification: Attempt to wrongfully and falsely make armed forces identification cards in words and figures as follows: false dates of birth during February 2001.
Violation of UCMJ, Article 134 (3 specs):
Specification 1: Wrongfully and falsely make an armed forces identification card in words and figures as follows: false date of birth during February 2001.
Specification 2: Wrongfully sell to PFC B_, a false armed forces identification card during April 2001.
Specification 3: Wrongfully possess, with an intent to deceive, an armed forces identification card between, during and about May 2000 and July 2001.
Awarded forfeiture of $584.00 per month for 2 months, restriction and extra duties for 45 days, reduction to PFC.  Not appealed.

020115:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

020118:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

020122:	Counseled for deficiencies in performance and conduct.  [Producing, selling, distributing, and using false ID cards which resulted in your receiving battalion level nonjudicial punishment on 011102 for violation of Articles 80 and 134 of the UCMJ.]  Necessary corrective actions explained.  

020131:	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, and recommended retention.

020213:	Commanding Officer concurs with the finding of administrative discharge board that the evidence supports misconduct due to commission of a serious offense.  However does not concur with the recommendation that Applicant be retained and recommends the case be forwarded to Secretary of the Navy with a recommendation that Applicant be discharged with a general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.  The factual basis for this recommendation was your discreditable involvement with authorities as evidenced by your wrongful manufacture, possession and sale of falsified armed forces identification cards.  

020215:	SJA review determined the case sufficient in law and fact.

020215:	GCMCA [Commanding General, Marine Corps Recruit Depot/Eastern Recruiting Region, Parris Island, SC] recommended to Assistant Secretary of the Navy (Manpower and Reserve Affairs), Applicant be discharged with a general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.

020425:	Applicant’s letter to Secretary of the Navy.

020621:	Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved recommendation for discharge with a general (under 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 20020712 under honorable conditions (general) 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.  There is no impropriety or inequity in the fact that the Assistant Secretary of the Navy (Manpower and Reserve Affairs) directed the Applicant’s discharge under honorable conditions (general) despite an administrative board recommendation that the Applicant be retained.  The Applicant was administratively separated precisely in accordance with paragraph 6307.4 and 9309.2.b of MCO P1900.16E.  The reference cited by the Applicant does not apply to this case.  The Applicant’s administrative discharge board found that the Applicant had committed misconduct due to a serious offense and recommended retention.   The separation authority did not approve of the board findings and therefore properly and equitably directed discharge under honorable conditions (general).  Relief denied.

Issue 2.  The Assistant Secretary of the Navy (Manpower and Reserve Affairs) determined the Applicant’s characterization of service, not his administrative discharge board.  Despite the positive aspects of his record and the recommendation of the administrative discharge board a characterization of service of under honorable conditions (general) is warranted due to the Applicant’s serious offenses.  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 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 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 80, attempts; Article 107, lying; Article 121, larceny; and Article 134, falsifying armed forces ID cards.

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