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

 ex-LCpl, USMC
Docket No. MD03-01504

Applicant’s Request

The application for discharge review was received on 20030917.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record review.  Subsequent to filing his DD Form 293, the Applicant obtained representation from the Veterans of Foreign Wars.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040617.  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.  Appendix (a) 9. I believe the record to be in error or unjust in the fallowing particulars:

While serving on Active Duty on January 31,1999 with the United States Marine Corps, I M_ A. G_ then Lance Corporal G_ (SSN) was accused of a crime while on Leave.  Do to the nature of the crime I was detained under the custody of the Riverside Sheriff Department in Riverside, California. Which prohibit me to return to my Unit (1st Marine Division 3rd L.A.R. “B” Company). On January 31, 2000 The United State Marine Corps decide to Discharge me Under “Other than Honorable Discharge”.

The Other than Honorable Discharge was given to me while still only accuse of a crime and not yet been found guilty in any Court Civilian or Military. Which is not Only Unjust but unconstitutional as well. According to the Bill Of Rights Amendment 5... .nor be deprived of life, liberty, or property, without due process of law. The statement that no person shall be deprived of life, liberty, or property "without due process of law” expresses one of the most important rules of the Constitution. The same words are in the 14th Amendment as restriction on the power of the states. Sense the Due process of law had not yet been processed and had not been either been found innocent or guilty by my peers in a court of law on the date the Unite States Marine Corps decide unjust fully Other than Honorable discharge me. I see fit according to the law to have the Unites States Marine Corps over turn My Other than Honorable Discharge to Honorable.

     I have taken full responsibility for no more than receiving a page 11 on my service record for being accused of any crime while serving in the United States Marine Corps.

Sincerely,
M_ A. G_ (Applicant) Signature,”

Additional issues submitted by Applicant’s counsel/representative (VETERANS OF FOREIGN WARS): 

“1.  We concur with the applicant’s contention that his discharge be upgraded.”

Documentation

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

Applicant’s DD Form 149
Applicant’s ltr to the Board of Correction of Naval Records, dtd 030613
Board of Correction of Naval Records’ ltr to the Applicant, dtd 030806
Character reference, dtd 031024
Cornell University Certificate of Completion (3)
-	Accounting
-	Business Math I
-	Managing Loss Prevention
Vaca Valley Adult School Vocational Education Completion Certificate (3)
-	Heavy Timber
-	Stair Building
-	Related Arithmetic
Certificate of Academic Excellence, United Education Institute
Certificate of Academic Achievement, United Education Institute (3)
Certificate of Achievement, Escuela Biblica Dominical

PART II - SUMMARY OF SERVICE

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

	Active:   			None
	Inactive: USMCR (J)		970227 - 980921	COG

Period of Service Under Review:

Date of Enlistment:  980922		Date of Discharge:  000131

Length of Service (years, months, days):

	Active:    01  04  10 (Does not take into account lost time.) 
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  38

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.6 (5)			Conduct:  3.6 (5)

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  365 (990131 – 000130)

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:

990922:	Counseled for deficiencies in performance and conduct.  [Commission of a serious offense and two counts of Attempted Murder and two counts of Assault with a firearm.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990921:	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 charges for two counts of Attempted Murder and two counts of Assault with a Firearm.

990921:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

990925:	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 charges brought from the Moreno Valley Police Department:  Two counts of Attempted Murder and two counts of Assault with a Firearm.

991222:	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 other than honorable conditions.  It was noted that the Respondent, (the Applicant), was not present at the hearing due to being In the Hands of Civil Authorities.

000113:	GCMCA [Commanding General, 1st Marine division (Rein)] directed the Applicant's discharge under other than 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 20000131 under other than honorable conditions for misconduct due to the commission of a serious offense (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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 (C and D).

Issues 1& 2.  The Applicant opines, since he had “not yet been found guilty in any Court Civilian or Military. (His discharge was) not Only Unjust but unconstitutional as well.” After a very careful review of the Applicant’s record, the board found nothing that would support the Applicant’s contention that his constitutional rights had been violated or that he had been treated in an unjust manner.  The record reveals the Applicant was granted every consideration under the rules and regulations that govern the good order and discipline of the Armed Forces of the United States of America. Not only was the Applicant afforded “due process of law,” he was also provided legal counsel at no cost as well as being given the opportunity to present his case before a duly constituted Administrative Discharge Board.  Additionally, the record reveals the Applicant was advised of his rights and he acknowledged, by signature, that he understood them.  The discharge was proper and equitable.  Relief denied.

          Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve our country.  It must be noted most Marines serve honorably and therefore earn honorable discharges.  In fairness to those Marines, commanders and separation authorities are tasked to ensure undeserving Marines receive no higher characterization than is due. 

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.  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.  

C.  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.

D.  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