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

  ex-LCpl, USMCR
Docket No. MD03-01016

Applicant’s Request

The application for discharge review was received on 20030516.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable or general/under honorable conditions.  The Applicant requests 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 20040408.  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.  “While I was in the Marine Corps I was diagnosed with testicular cancer and received treatment for it.  Since my discharge I have been unable to receive any type of insurance, not even from the VA.  I realize that when I got into trouble that I need to tell the truth and ask for forgiveness.  I would appreciate an upgrade of my discharge, so I can get some insurance thru the VA.  I completed all my disciplinary actions from the State of Georgia and I have fully cooperated with the State and government authorities.”

Documentation

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

Applicant’s DD Form 214
Statement in Support of Relief from Maj. M_ J. M_, Chief Trial Counsel, MFR, dtd Apr 9, 2003 (4 pages)
Statement in Support of Relief from Maj. R_ L. P_, Admin Law Officer, MFR, dtd April 25, 2003 (2 pages)
Dept of Veterans Affairs, Medical Center, Decatur, GA, ltr of Apr 5, 2003, denying Applicant medical benefits
Copy of Applicant’s Military Medical Record

PART II - SUMMARY OF SERVICE

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

	Inactive: USMCR		880816 - 881114	To Report IADT
	Active:   USMCR		881115 – 890630	Released IADT
	Inactive: USMCR		890701 – 901128	To Report ACDU
	Active:   USMCR		901129 – 910502	Released ACDU
	Inactive: USMCR		910503 – 920408	To Report ACDU
	Active:   USMCR		920409 – 920710	Released ACDU
	Inactive: USMCR		920711 – 930910	To Report ACDU 
	Active:   USMCR		930911 – 970722	To reenlist, Active Reserve 
Program

Period of Service Under Review:

Date of Enlistment:  970723		Date of Discharge:  010203

Length of Service (years, months, days):

	Active:    03  06  10
	Inactive:  None

Age at Entry:  26			Years Contracted:  4 

Education Level:  12			AFQT:  33

Highest Rank:  Sgt

Final Enlisted Performance Evaluation Averages:  Enlisted performance reports were available to the Board for review thru 20000630

Military Decorations:  None

Unit/Campaign/Service Awards:  NAM, CAR, GCM (2), AFSM, SSDR, Kuwait Liberation Medal, MUC(2), MM(2), LoA(2), SMCRM, Commanding General LoA,
NDSM, SWASM, NUC, Certificate of Appreciation, Certificate of Achievement

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:

970723:	Reenlisted for term of 4 years.

000616:	Civil Conviction:  State Court of Cobb County, charged with the offense of 16-8-2- Theft by Taking, a misdemeanor, on 2 Feb 2000:  did unlawfully take and appropriate Hummer parts, of a value of less than $500.00, the property of United States Marines, with the intention of depriving the said owner of said property.
	Sentence:  Placed on probation, 40 hours community service, pay probation supervisory fee of $35.00, probation may terminate upon complete payment and completion of any special conditions after 4 months.

000728:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by theft by taking.  Applicant also advised that if a Marine serving in pay grade E-4 or above is administratively separated under other than honorable conditions the Marine will be administratively reduced to pay grade E-3 effective upon discharge.

000808:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to make a statement and to obtain copies of the documents used to support the basis for the separation.

000921:	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 due to Sgt D_ (Applicant) being charged and convicted of theft by taking on 16 June 00 by Cobb County State Court.  

010129:	SJA review determined the case sufficient in law and fact.

010129:	GCMCA [MFR] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and directed administrative reduction in pay grade to 
E-3 upon separation.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010203 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).

Issue 1.  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 occurred during the Applicant’s enlistment.  Relief denied.

Additionally, there is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, to enable the receipt of veterans’ benefits, or for 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 P1900.16E), 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 121, larceny.

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