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

FOR OFFICIAL USE ONLY

 ex-PFC, USMC
Docket No. MD06-00947

Applicant’s Request

The application for discharge review was received on 20060703.  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 did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20070510.  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 - ISSUES AND DOCUMENTATION

Decisional Issues

Equity – Acquitted of civilian charge
Equity – Good service overall
Equity –  Maltreatment

Documentation

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

Letter from Applicant, dtd January 27, 2005
Personal Statement from Applicant 
Receipt from Pawn Brokers of Alexandria
Reference Letter from B_ J. C_, dtd February 1, 2005
Reference Letter from Sgt R_ H_
Authentication of Record, dtd September 29, 2005
Court Order from Fairfax County (2 pgs)
Statement from Applicant (2 pgs)
Applicant’s DD Form 214 (Member 1)
Applicant’s DD Form 214 (Member 4)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	20020524 - 20021103	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20021104		Date of Discharge:  20050311

Length of Service (years, months, days):

Active:    02  04  08  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  19

Years Contracted:  4 

Education Level:  08 (GED)				AFQT:  54

Highest Rank:  LCpl				MOS:  5811

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.9 (6)			Conduct:  3.9 (6)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Rifle Expert Badge, Pistol Sharpshooter Badge, Global War Terrorism Service Medal, National Defense Service Medal, Letter of Appreciation

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:

030529:	NJP for violation of UCMJ, Article 92:  On or about 030526, by consuming alcoholic beverages while under the legal drinking age.
Award:  Forfeiture of $575.00 pay per month for 2 months, reduction to E-1.  Not appealed.

030604:	Counseling:  Advised of deficiencies in performance and conduct (Violation of Article 92, on or about 030526 consuming alcoholic beverages while under the legal drinking age.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

Undated:	Rebuttal for page 11.

040512:	Counseling:  Advised of deficiencies in performance and conduct (On 040407 you were involved in a physical and verbal altercation, with a female, which resulted in your arrest by the DC Metro police, for a simple assault.  Additionally, you violated a special order issued by your SNCOIC, by having a cell phone in your possession.  The SNCOIC’s specifically issued the order Cell phones are not allowed, as part of the duty gear, while on post, in an official duty capacity.  Furthermore, you violated Post order 5500.1B by having a paint pistol in your possession, in the parking garage, building #28, aboard Henderson Hall.  You provided a false verbal statement to your SNCOIC on several occasions, when questioned about the Paint pistol, which has placed your integrity, one of the most important attributes of leadership, into question.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

041222:	Counseling:  Advised of deficiencies in performance and conduct (Recent misconduct on 041218, commission of serious offense by unlawfully discharging a weapon, in your resident at 2914 Furman Lane, Alexandria, Virginia.  This act of misconduct resulted in your arrest by the Fairfax County Police Department.  The round that was discharged from your Glock 17, 9mm pistol entered through the roof of the apartment below you, and penetrated the mattress of a bed, where a civilian was laying down approximately eighteen inches from the point of impact.  Your action showed no regard for the safety and welfare of your surrounding neighbors and were of a nature that brings discredit upon the Marine Corps.), sources of assistance provided and necessary corrective actions explained. 

050110:	Counseling:  Advised of deficiencies in performance and conduct (Spouse physical abuse as evidenced by a level I substantiation resulting from the Case Review Committee (CRC), . . . and a Level IV, substantiation . . . . You were found by the CRC to have physically assaulted your spouse on 041217 in your off base residence in Arlington, VA), sources of assistance provided and necessary corrective actions explained. 

050121:	NJP for violation of UCMJ, Article 90:  In that LCpl R_ did, on or about 050114, violate his MPO by contacting and visiting his wife.
	Award:  Forfeiture of $692.00 pay per month for 2 months (suspended for 6 months), restriction and extra duty for 45 days, reduction to E-2.  Not appealed.

050121:	Applicant notified of intended recommendation for discharge as under other than honorable conditions by reason of misconduct due to commission of a serious offense.  The factual basis for this recommendation was on 041217 where SMN were charged with Domestic Assault and Unlawful Discharge of a Firearm.  During an altercation with your wife, E_ R_, who received a laceration to the left side of her head, you brandished an unregistered Glock 17 9mm pistol that discharged, penetrated the floor, and impacted the mattress in a downstairs apartment.  Applicant informed the least favorable character of service possible was as under other than honorable conditions.

050127:	Applicant advised of rights and having consulted with counsel, elected to waive all rights except the right to include written statement to this proposed separation and to obtain copies of the documents used to support the basis for the separation.

050223:	Commanding Officer recommended Applicant’s discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.

050225:	GCMCA, Commander 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 20050311 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 Board presumed regularity in the conduct of governmental affairs (E).

The Applicant argues that his discharge should be upgraded because he was acquitted of one of the civilian charges used as a basis for his discharge.  The Board disagrees with the Applicant’s assessment.  The Applicant was involved in an incident of spousal abuse on 041218.  The counseling related to that incident indicates that the Applicant was arrested and charged with assault and unlawfully discharging a weapon.  While the Applicant was acquitted of one of the serious offenses committed on 041218 he was not acquitted of all civilian misconduct related to his actions on 041218.  In addition to the remaining civilian charges (specifically assault and brandishing an unregistered weapon), the Applicant was awarded nonjudicial punishment for violating a military protective order when he visited his wife on 050114.  Violations of UCMJ Articles 128 (assault) and 90 (willful disobedience of an order) are considered serious offenses for which a punitive discharge is authorized at courts martial.  Additionally, discharge for commission of a serious offense does not require adjudication by nonjudicial, judicial proceedings, or civilian conviction.  The only requirement is that the offense must be substantiated by a preponderance of evidence.  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.  The Applicant was provided the opportunity to present his case to an administrative board, but waived that right, thus accepting the discharge recommended in the letter of notification.  Relief denied. 

The Applicant argues that his service was improperly characterized because his performance was good.  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.  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, two counselings (regarding spousal abuse and substantiated family advocacy interventions), and two nonjudicial punishment proceedings for violations of Articles 90 (willful disobedience of an order) and 92 (failure to obey an other lawful order) of the UCMJ.  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.

In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.  Specifically, Applicant alleged that he was maltreated by superiors in his chain of command.  The record, however, contains no evidence of any wrongdoing by the Applicant’s Commanding Officer or anyone else for that matter in the discharge process.  The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary.  As such, this Board presumed that Applicant’s discharge was regular in all respects.  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.  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 P1900.16E), effective 01 September 2001 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, Articles 90 (willful disobedience), 92 (violate an other lawful order), and 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.

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.  

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