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

FOR OFFICIAL USE ONLY

 ex-PVT, USMC
Docket No. MD05-00853

Applicant’s Request

The application for discharge review was received on 20050413.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review, a personal appearance hearing before the Board or a personal appearance hearing before a traveling panel.  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) does not travel; all hearings are held in the Washington DC area or Washington, D.C. Metropolitan area.  The NDRB also advised that the Board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050811.  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:

“I was never convicted of the offense in question to be crippled of the privileges of being a American Citizen.  E.G.H.”

Documentation

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

None were submitted by the Applicant.

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		950125 - 950227	COG

Period of Service Under Review:

Date of Enlistment:  950228		Date of Discharge:  970411

Length of Service (years, months, days):

	Active:    02  01  13
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  80

Highest Rank:  LCpl			MOS:  7011

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (4)			Conduct:  4.0 (4)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Marksman Badge, National Defense Service Medal, Sea Service Deployment Ribbon

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:

960620:	Counseled for deficiencies in performance and conduct.  [Specifically my participation in an incident involving maltreatment of a fellow Marine and misuse of government property.  My failure to live up to Marine Corps standards was unsatisfactory.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

960918:	NJP for violation of UCMJ, Article 128: While assigned to HQHQRON, MCAS, Iwakuni you assaulted PFC B___, USMC by unlawfully striking SNM in the face with a closed fist and kicking him in the upper torso while on the ground, thereby inflicting grievous bodily harm that resulted in a broken nose, laceration over the right eye, and two broken teeth.
Awarded forfeiture of $200.00 pay per month for 2 months.  Not appealed.

960918:	Counseled for deficiencies in performance and conduct.  [Violation of Article 111, UCMJ: Reckless driving, in that on or about 3 Aug 1996, I operated a vehicle at a high rate of speed, in a reckless manner in close proximity to pedestrians, and disrespect to a noncommissioned officer, by initially failing to stop when directed and then becoming involved in a verbal altercation with an individual I knew to be an NCO.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

970225:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  The least favorable characterization possible is under other than honorable conditions.  The basis for this recommendation is your possession of three handguns, seven pistols cartridges, and assorted pyrotechnics in your barracks room, in violation of Article 1159, U.S. Navy Regulations, dated 14 September 1990.  

970226:	Applicant advised of rights and having elected to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

970305:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 92.
	Specification: On or about or between 3 November 1997 and 6 November 1996 failed to obey a lawful general regulation by wrongfully possessing a dangerous weapon, instrument or device, or any highly explosive article or compound, to wit: three handguns, seven pistol cartridges, and assorted pyrotechnics, within the Marine Corps Air Station, Beaufort, South Carolina.  
	Finding:  to Charge I and the specification thereunder, guilty.
	Sentence:  Reduction to E-1, forfeiture of $600.00 pay per month for 1 month, confinement for 30 days.
	CA action 970325:  Sentence approved and ordered executed, except for the forfeiture which is suspended for six months. 

970311:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  

970404:	SJA review determined the case sufficient in law and fact.

970404:	Commander, 2d Marine Aircraft Wing, 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 19970411 under other than honorable conditions for misconduct due to the commission of a serious offense (A and 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).

An under other than honorable conditions discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by two retention warnings, nonjudicial punishment proceedings and a summary court-martial conviction for violations of Articles 92, 111 and 128 of the UCMJ.  Violations of Articles 92, 111 and 128 are considered serious offenses. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant contends that he “was never convicted of the offense in question.”  The Applicant was convicted of violating Article 92 of the UCMJ at summary court-martial on 19970305.  Prior to the Applicant’s summary court-martial, on 19970225, the Applicant was notified by his Commanding Officer that the Applicant’s possession of three handguns, seven pistols cartridges, and assorted pyrotechnics in his barracks room served as the basis for recommending the Applicant’s administrative separation for misconduct due to commission of a serious offence.  Nonetheless, commission of a serious offense does not require adjudication by nonjudicial, judicial proceedings or civilian conviction; however, the offense must be substantiated by a preponderance of evidence.  Relief on this basis is not warranted.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of 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 31 August 2001). 

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, failure to obey an order/regulation, Article 111, drunken or reckless operation of a vehicle and Article 128, assault.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		Secretary of the Navy 	Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023