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

  ex-Cpl, USMC
Docket No. MD03-01461

Applicant’s Request

The application for discharge review was received on 20030827.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record review.  The Applicant listed a Civilian Counsel as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040812.  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:

“1.  My discharge was inequitable because the conduct upon which it is based has been mitigated by overall good service and a demonstration that the alleged conduct was fabricated and untrue.

2.  My discharge was inequitable because the conduct upon which it is based was not warranted because of the unusal facts of this case.

3.  My discharge was inequitable because the conduct upon which it is based was unsupported by any evidence and was denied throughout the discharge proceedings.

4.  My discharge was inequitable because the conduct upon which it is based is nullified by supporting declarations.

5.  My discharge should be upgraded because I was discharged because of unsubstantiated allegations that I refute through my attached declarations.

6.  My discharge should be upgraded because other than fully honorable administrative discharges are sometimes awarded for civilian misconduct which was not service related or impairing.  In this case, there was no civilian misconduct and the discharge should be upgraded.”

Additional issues submitted by Applicant’s counsel/representative (Law Offices of Edmunds and Sumner):

7. “Statement of Material Contentions and Argument

Based on the foregoing facts, Cpl. G_ (Applicant) requests a discharge upgrade because the General Discharge is based only on alleged conduct that is mitigated by overall good service. He has committed no misconduct.

During Cpl. G_ (Applicant)’s service history, he received outstanding conduct and efficiency ratings. He was cited as being an exemplary Marine and scored above average in all of his performance evaluations.

Another factor that should be considered by the Board in assessing Cpl. G_ (Applicant)’s service history are the numerous awards and decorations that he received during his service. As stated before, Cpl. G_ (Applicant) received a Rifle Expert Badge, a National Defense Service Medal, a Good Conduct medal, and a Sea Service Deployment Ribbon.

Cpl. G_ (Applicant)’s prior honorable service is also a factor that should be considered by the Board. His service from his entry date in 2000 until his discharge was honorable and contained no disciplinary documentation. His grades and promotion to Cpl. demonstrate his outstanding productivity during that period of service.

In conclusion, the General discharge and RE-4 reenlistment code are inequitable because Cpl. G_ (Applicant) has adamantly denied the occurrence of the offense and the existence of several mitigating factors. His denial is supported by a retraction of allegations by his wife (Please refer to Exhibit 2-A). His good character is supported by declarations by J. C. (Please refer to Exhibit 2-B), who has known Cpl. G_ (Applicant) for 12 years. F. N.  (Please refer to Exhibit 2-C), and her husband R. N. (Please refer to Exhibit 2-D) provide additional support of Cpl. G_ (Applicant)’s outstanding character. Cpl. G_ (Applicant)’s proficiency-conduct rating, awards, decorations, and 10 year period of honorable service should be considered in upgrading his discharge and RE-4 reenlistment code. Also, according to a recent Department of Defense memorandum, discharge upgrades are being awarded to members of the inactive reserve who were awarded a less than honorable discharge for civilian conduct which was not service related or impairing conduct that is similar to Cpl. G_ (Applicant)’s. (Please refer to Exhibit 3) Here, the civilian conduct in question never occurred and Cpl. G_ (Applicant)’s discharge should be upgraded accordingly.

WHEREFORE Cpl. G_ (Applicant) respectfully requests a discharge upgrade and an upgraded reenlistment code.”

Documentation

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

Applicant’s DD Form 214 (Completion of Required Active Service (Return from 
   Overseas Less Than 90 Days to EAS))
Letter from Defense Counsel dated 18 March 2002
Affidavit from Applicant’s wife
Affidavit from J_ C_
Affidavit from F_ N_
Affidavit from R_ N_
Letter from DOD Discharge Review Project Office dated 31 July 1996

PART II - SUMMARY OF SERVICE

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

Inactive: USMCR (J)		910806 - 920719	COG
	Active:   USMC		920720 – 970121	Rel AcDu/Transfer IRR
	Inactive: USMCR		970122 – 971005	To Report AcDu
	Active:   USMCR		971006 – 980109	Rel AcDu/Transfer IRR
	Inactive: USMCR		980110 – 980516	To Report AcDu
	Active:   USMCR		980517 - 990331	Rel AcDu/Transfer IRR
	Inactive: USMCR 		990401 – 990805	Discharged (HON)

Period of Service Under Review:

Date of Enlistment:  000321*	Date of Discharge:  020423

Length of Service (years, months, days):

	Active:    02  01  03 		Inactive:  None

Age at Entry:  28			Years Contracted:  4

Education Level:  12			AFQT:  35

Highest Rank:  Sgt

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency: 2.0 (1)	Conduct:  2.1 (1)

All Fitness Reports were available for review

Military Decorations:  GCM

Unit/Campaign/Service Awards:  SSDR, NDSM

Days of Unauthorized Absence:  None

*Enlistment contract not contained in service record book.

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:

000630:	Counseled for deficiencies in performance and conduct.  [Failing the Division MT Base Validation Test on 000531 and 000607.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

010516:	Applicant issued Military Protection Order (MPO) #1 concerning his wife.  

010803:	Applicant’s wife debarred from 33 Area, Camp Margarita.

010803:	Applicant issued Military Protection Order #2 concerning his wife.  Order in effect through 29 October 2001.

010821:	MPO #2 lifted.

010821:	Counseled for deficiencies in performance and conduct.  [Domestic issues which have been brought to the attention of the command.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

010829:	Applicant issued Military Protection Order #3 concerning his wife.  Order in effect through 26 November 2001.

011005:	MPO #3 lifted.

011025:	Counseled for deficiencies in performance and conduct.  [From 1998 through September 2001, 14 domestic violence accusations were made against you by your wife.  You have had several MPOs placed against you.  Although in each case review there was not evidence to support the claims made by your wife, it has cost the command and Family Advocacy Office numerous hours to investigate the claims.  After being separate, you have decided once again to return to this volatile situation.  This command has counseled you on the potential problems that could arise by doing so.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

011114:	Counseled for deficiencies in performance and conduct.  [In September 2001 informed by Base Magistrate that you and your family were being evicted from Base Housing due to documented family domestic violence accusations made by your spouse including her own misconduct aboard Camp Pendleton.  Eviction date scheduled for 8 November 2001.  Even though each case reported was found to be unsubstantiated, many man hours by PMO, Family Advocacy, ITB, CID, and your chain of command have been exhausted investigating these issues.  As of October 24 you had not found off-base housing and had been calling base housing trying to stay in base housing for financial reasons.  Due to your not following orders, this command had to cancel your school seat for the NCO Ops Course.  Once again your neglect and family situation has caused this command to waste valuable time to ensure your family is taken care of.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

011203:	NJP for violation of UCMJ, Article128: Assault by striking at his wife on 011101.
	Award:  Reduction to E-4.  Not appealed.

011211:	Counseled for deficiencies in performance and conduct.  [Found guilty at BN NJP.  Specifically assaulted wife which is a commission of a serious offense, and was found to be substantiated by the Intervention and Treatment Branch, Case Review Committee, Case number 010924-144854 on 011101.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  Applicant elected to make a statement.  Statement not found in the record.

020117:	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 documented serious offenses.

020117:	Applicant advised of rights and having declined to consult with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

020308:	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, that the misconduct warranted separation, and recommended discharge under honorable conditions (general).

(Unreadable):	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 the documented incidents of domestic violence.  Applicant has fourteen PMO blotter entries involving domestic violence, which resulted in his family’s eviction from Base housing.  He has been restricted from seeing his family.

020418:	SJA review determined the case sufficient in law and fact.

020419:	GCMCA [CG, 1st MARDIV (Rein)] directed the Applicant's discharge under honorable conditions (general) 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 20020423 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 - 7.  There is credible evidence in the record that the Applicant committed a serious offense by assaulting his wife.  Case number 010924-144854 of the Camp Pendleton Intervention and Branch Case Review Committee documents a substantiated Level IV incident of spousal abuse by the Applicant against his wife.  This incident is a serious offense. Separation under these conditions generally results in characterization of service under other than honorable conditions.  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.  Further, the positive aspects of the Applicant’s service do not mitigate his misconduct sufficient to warrant an upgrade in his characterization of service during his final enlistment to honorable.  The DoD memorandum cited by the Applicant pertaining to the conduct of inactive reservists does not provide a basis for relief in this case.  Relief denied.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  

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 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 128, assault.

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