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

  ex-LCpl, USMC
Docket No. MD03-01019

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 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 20040415.  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

No issues were submitted by the Applicant. 

Documentation

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

Applicant’s DD Form 214 (Member-1, State VA-6 copy)
Applicant’s Awards (5 pages)
Applicant’s Combat History page

PART II - SUMMARY OF SERVICE

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

	Inactive: USMCR(J)		900302 - 901119	COG
	Active:	   USMC		901120 – 941118	HON
	Active:   USMC		941119 - 980724	HON

Period of Service Under Review:

Date of Enlistment:  980725		Date of Discharge:  010803

Length of Service (years, months, days):

	Active:    03  00  09 (Doesn’t exclude confinement time.)
	Inactive:  None

Age at Entry:  26			Years Contracted:  4 

Education Level:  12			AFQT:  37

Highest Rank:  SSgt

Final Enlisted Performance Evaluation Averages:  Enlisted performance reports were available to the Board for review thru 20010327

Military Decorations:  None

Unit/Campaign/Service Awards:  AFEM, NUC, MUC, GCM(3), NDSM, SSDR(2), NATO, NASR, LOA(2), CC, MM(7), Rifle Marksman Badge, Pistol Marksman Badges

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:

980725:	Reenlisted for 4 years at MCRS Ft. Sam Houston, San Antonio, TX.

010328:	Special Court-Martial (Trial dates – 6, 27, & 28 Mar 01).
	Charge I:  violation of the UCMJ, Article 92 (3 Specifications):
	Specification 1:  On or about 5 Jul 00, violate a lawful general regulation to wit:  Art 1165 U.S. Navy Reg, by wrongfully fraternizing with PFC R. A. B_.
	Specification 2:  On or about 9 Jul 00, violate a lawful general regulation to wit:  Art 1165 U.S. Navy Reg, by wrongfully fraternizing with PFC R. A. B_.
	Specification 3:  On or about 24 Oct 00, violate a lawful general regulation to wit:  Art 1165 U.S. Navy Reg, by wrongfully fraternizing with PFC R. A. B_.
	Charge II:  violation of the UCMJ, Article 134:
	Specification: On or about 1 Aug 00 to 16 Nov 00, dishonorably fail to pay said debt.
	Additional Charge:  violation of the UCMJ, Article 121 (3 Specifications):
	Specification 1:  On or about 5 Jul 00, steal a Motorola cellular phone, of a value of about $29.99, the property of PFC R.A. B_.
	Specification 2:  On or about 9 Jul 00, steal three digital video discs, of a value of about $60.00, the property PFC R.A. B_.
	Specification 3:  On or about 21 Jul 00, wrongfully appropriate U.S. currency, of a value of about $200.00, the property PFC R. A. B_.
	Findings:  to Charge I and specifications 1, 2, & 3 thereunder – guilty;
to Charge II and specification thereunder – guilty except for the word and figures “16 November 2000”; and substituting therefore the words and figures “on or about 15 September 2000”; To the excepted word and figures, Not Guilty; To the substituted words and figures, Guilty; To the specification as substituted and excepted, Guilty.  
To Additional Charge and specifications thereunder – not guilty, specifications 1 and 2 – withdrawn, specification 3 – not guilty.
	Sentence:  Confinement for 30 days, reduction to E-3, and hard labor for 30 days without confinement.
	CA 010608:  Sentence approved.
	SPCMO 010607:  Approved as approved by the CA.

010328:	To confinement, Sentence of SPCM.

010420:	From confinement, to duty. [EXTRACTED FROM THE DD FORM 214]

[ADMIN DISCHARGE PACKAGE NOT CONTAINED IN SERVICE RECORD]

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010803 under other than honorable conditions for misconduct due to the commission of a serious offense (A and B).  In the absence of a discharge package, the Board presumed regularity in the conduct of governmental affairs (C) and, after a thorough review of the records, supporting documents, facts, and circumstances unique to this case, found that the discharge was proper and equitable (D and E).

The Applicant introduced no decisional issues for consideration by the Board.  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 special court-martial in which the Applicant was found guilty of serious offenses.  A serious offense is any violation of the UCMJ in which a punitive discharge could be awarded.  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.  An upgrade is inappropriate.  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 final 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 92, disobey a lawful order; and Article 134, fail to pay debts.

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