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

FOR OFFICIAL USE ONLY

ex-Pvt, USMC
Docket No. MD06-00856

Applicant’s Request

The application for discharge review was received on 20060601.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable or general (under honorable conditions).  The Applicant requests a documentary record discharge 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 20070329.  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 a pattern of misconduct.

The NDRB did note administrative error(s) on the original DD Form 214.  Block 18, Remarks, should read:  “CONTINUOUS HONORABLE ACTIVE DUTY FROM 970604 UNTIL 040415,” and Block 24, Character of Service, should read:  “UNDER OTHER THAN HONORABLE CONDITIONS.”  The Commandant, Headquarters USMC, Quantico, VA, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

 PART I - ISSUES AND DOCUMENTATION

Decisional Issues

None.

Documentation

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

Applicant’s DD Form 214 (Member 1 and 4)

PART II - SUMMARY OF SERVICE

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

	Inactive: USMCR (DEP)	19961231 - 19970603	COG
	Active:   USMC	19970604 - 20001012	HON
		USMC	20001013 - 20040415	HON

Period of Service Under Review:

Date of Enlistment:  20040416		Date of Discharge:  20050822

Length of Service (years, months, days):

Active:    01  04  09  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:    2 days
	Confinement:		  99 days

Age at Entry:  32

Years Contracted:  4

Education Level:  12				AFQT:  64

Highest Rank:  Sgt				MOS:  0121

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.0 (1)				Conduct:  1.0 (1)

Applicant’s fitness reports as a Sergeant were not available in the record.

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Rifle Marksman Badge, Navy/Marine Corps Achievement Medal (2), Good Conduct Medal (2) Sea Service Deployment Ribbon (4), Global War on Terrorism Expeditionary Medal, National Defense Service Medal, Navy Unit Commendation, Letter of Commendation, Letter of Appreciation, Certificate of Commendation

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.3.

Chronological Listing of Significant Service Events:

040416:	Reenlisted this date for a term of 4 years.

041109:	Counseling:  Advised of deficiencies in performance and conduct (Violation Article 92.  Violation Article 134: Adultery.  Violation Article 134: Fraternization and indecent acts with another.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

041118:	NJP for violation of UCMJ, Article 92: On 041102, on or about 1800 did violate BnO 11100.1A, by staying in LCpl E_’s barracks room, who is a member of the opposite sex, with the latch closed.
Violation of UCMJ, Article 134 (2 specs):
Specification 1: (Adultery) On several occasions, wrongfully had sexual intercourse with LCpl E_, a woman not his wife.
Specification 2: (Fraternization): On 041103 on or about 1800, knowingly did fraternize with LCpl E.
	Award:  Forfeiture of $945.00 per month for 2 months, reduction to E-4.  Not appealed.

050415:	Special Court-Martial.
	Charge I: violation of the UCMJ, Article 90:
	Specification: Willfully disobeying superior commissioned officer.  
Plea:  Not Guilty.  Findings:  Withdrawn.
	Charge II: violation of the UCMJ, Article 92 (2 specifications):
	Specification 1: Failure to obey a lawful general regulation.  
Plea:  Not Guilty.  Findings:  Withdrawn.
	Specification 2: Failure to obey a lawful general regulation.  
Plea:  Guilty.  Findings:  Guilty.
	Charge III: violation of the UCMJ, Article 134 (3 specifications):
	Specification 1: Adultery.  Plea:  Guilty.  Findings:  Guilty.
	Specification 2: Indecent acts.  Plea:  Not Guilty.  Findings:  Withdrawn.
	Specification 3: Indecent exposure.  Plea:  Not Guilty.  Findings:  Withdrawn.
	Sentence: Confinement for 120 days, a reprimand, reduction to E-1.

050629:	Applicant notified of intended recommendation for discharge as under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  The factual basis for this recommendation was established pattern of misconduct as evidenced by nonjudicial punishment and special court-martial.  Applicant informed the least favorable character of service possible was as under other than honorable conditions.

050630:	Applicant advised of rights and having consulted with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

050630:	Commanding Officer, Headquarters and Service Battalion, 3rd Force Service Support Group, recommended Applicant’s discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

050721:	SJA review determined the case sufficient in law and fact.

050726:	GCMCA, Commanding General, 3d Force Service Support Group, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20050822 by reason of misconduct due to a pattern of misconduct (A) with a characterization of service as 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 (B and C).  

When the service of a member of the U.S. Marine Corps has been honest and faithful, it is appropriate to characterize that service as honorable.  A general 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.  A discharge under other than honorable conditions is appropriate when a member’s behavior constitutes a significant departure from expected standards.  The record indicates that the Applicant, a married man, engaged in a wrongful sexual relationship with a subordinate female Marine not his wife.  He was received nonjudicial punishment and properly counseled regarding this conduct.  Subsequently, he was court-martialed for repeating his behavior.  The record establishes that the Applicant engaged in a pattern of misconduct.  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 U.S. Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant introduced no decisional issues for consideration by the Board.

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.  The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this 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 P1900.16F), effective 01 Sep 2001 until Present. 

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

C.  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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 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