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

FOR OFFICIAL USE ONLY

 ex-LCpl, USMC
Docket No. MD05-01310

Applicant’s Request

The application for discharge review was received on 20050802.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant designated the Disabled American Veterans as the representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that he was approaching the 15-year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington D.C. area.  Applicant did not respond.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060403.  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 by reason of misconduct due to the commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I feel that by the time of my discharge, my performance was at a greater than acceptable level and all my past deeds had been appropriately punished and served. I feel that I was a desirable re-enlistment candidate at that time.”

Additional issues submitted by Applicant’s counsel/representative (Disabled American Veterans):

“After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we continue to note the contention of the appellant in his request for an upgrade of his current Under Other Than Honorable Conditions Discharge (OTH) to that of Honorable.

The FSM served from July 9, 1986 to June 11, 1992 at which time he was discharged due to Misconduct – Commission of a Serious Offense.

The FSM contends the current character of discharge is to harsh compared to his character of service and level of proficiency and conduct marks. That he has been appropriately punished for the actions committed and feels he was a desirable re-enlistment candidate at the time of separation.

This creates a need for a review of the application of the standard, for the Board to determine that the Applicant’s discharge is improper. The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances of the case presented before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted. See SECNAVIST 5420.174D, Sect. 407, part 3.

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the Applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174D.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the Applicant.

Thank you for your cooperation in this matter.”

Documentation

Only the service record book and medical record were reviewed.  The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19860210 - 19860708	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19860709		Date of Discharge:  19920611

Length of Service (years, months, days):

Active:    05  11  03  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  630 days
	Confinement:		  None

Age at Entry:  18

Years Contracted:  6

Education Level:  12				AFQT:  78

Highest Rank:  Cpl				MOS:  0151

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.1 (12)				Conduct:  3.0 (12)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Overseas Service Ribbon, National Defense Service Medal, Good Conduct Medal

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct-Commission of a serious offense (all other) admin discharge board required but waived, authority:  MARCORSEPMAN Par. 6210.6.

Chronological Listing of Significant Service Events:

891206:	Arrest warrants issued for Applicant.

891206:	Applicant to unauthorized absence on 891206 (IHCA).

900427:	Applicant convicted at the Superior Court, Jacksonville, North Carolina of breaking and entering and larceny committed on 3 December 1989 and three counts of breaking and entering committed on 20 and 24 November 1989. [Extracted from Commanding Officer’s letter of 901220.]

900509:	NAVMC 118(11): Applicant is being administratively separated due to felony misdemeanor conviction of one count of breaking and entering and larceny and three counts of breaking and entering.  Date of commission of the above offenses were 891203, 891120, 891120 and 891124.  Applicant was awarded a ten year imprisonment by the Superior Court Division Onslow County.  Applicant’s period of IHCA is 891206 to present.  Applicant is pending additional charges of larceny, breaking and or entering, possession of stolen goods, and two counts of damage to real property.  Applicant will again appear before the Superior Court at a later date.  Applicant unable to sign due to his transfer to the State Correctional Facility Raleigh, NC.

900509:	Commanding Officer, Headquarters Battalion, 2d Marine Division, FMF recommended Applicant’s discharge under other than honorable conditions by reason of misconduct due to civilian conviction.  

900523:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct.  The least favorable characterization of service possible was under other than honorable conditions.

901217:	Applicant, advised of rights, elected to appear before an Administrative Discharge Board.

901220:	Commanding Officer, Headquarters Battalion, 2d Marine Division, Fleet Marine Force, Camp Lejeune recommended Applicant’s discharge under other than honorable conditions by reason of misconduct due to civilian conviction.  The factual basis for this recommendation was respondent’s civilian conviction in the Superior Court, Jacksonville, North Carolina on 27 April 1990 for breaking and entering and larceny committed on 3 December 1989 and three counts of breaking and entering committed on 20 and 24 November 1989.

910208:	An Administrative Discharge Board, based upon a preponderance of the evidence, found that the Applicant had committed misconduct due to a civilian conviction, that such misconduct warranted separation, and recommended discharge under other than honorable conditions.

910604:	SJA review determined the case sufficient in law and fact.

910615:	GCMCA, Commanding General, 2d Marine Division, FMF, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to civilian conviction.

910830:	Applicant from unauthorized absence (630 days/IHCA).

920113:	Commanding Officer, Headquarters and Service Company, Headquarters Battalion, 2nd Marine Division, recommended Applicant’s general discharge under other than honorable conditions by reason of misconduct (civilian conviction/commission of serious offense).

920220:	Applicant advised of rights and having elected not 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 and the right to submit written statements in rebuttal to the proposed separation.

920221:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general under other than honorable conditions by reason of misconduct (felony misdemeanor conviction).  

920327:	Commanding Officer, Headquarters Battalion, 2d Marine Division, FMF recommended Applicant’s discharge under other than honorable conditions by reason of misconduct by reason of civilian conviction.

920420:	Applicant advised of rights and having elected not 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 and the right to submit written statements in rebuttal to the proposed separation.

920423:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.  The least favorable characterization of service possible was under other than honorable conditions.  The factual basis for this recommendation was based upon one count of breaking, entering and larceny and three counts of breaking and entering in Onslow County, North Carolina.

920423:	Commanding Officer, Headquarters Battalion, 2d Marine Division, Fleet Marine Force, Camp Lejeune recommended Applicant’s discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.

920521:	SJA review determined the case sufficient in law and fact.

920526:	GCMCA, 2d Marine Division, FMF, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19920611 by reason of misconduct due to the commission of a serious offense (A and B) with a service characterization of under other than honorable conditions.  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).

The Applicant contends that his discharge was too harsh and that, by the time of his discharge, his performance  was “greater than acceptable.”  When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as honorable.  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 civil conviction for breaking and entering and larceny on 19900427 and three counts of breaking and entering on 19891120 and 19891124.  The Applicant’s violations of civil law are equivalent to violations of Articles 121 and 130 of the UCMJ, both of which 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 his “deeds had been appropriately punished.”  The Applicant was discharged under other than honorable conditions by reason of commission of a serious offense.  The Applicant’s administrative separation, characterization and narrative reason for separation are not considered punitive in nature.  Therefore, the Board found the Applicant’s contention without merit.  Relief on this basis is denied.

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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 Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided any post-service documentation for the Board to consider.  Relief denied.

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 The Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 27 Jun 89 until 17 Aug 95.

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 or Article 130, housebreaking.

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