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

 ex-PFC, USMC
Docket No. MD99-00506

Applicant’s Request

The application for discharge review, received 990225, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000118.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  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

1.  Although my notice of discharge (document #1) indicates that I was discharged on 22 July 1996, the paperwork for this began several months prior.  The reason was for misconduct - commission of a serious offense.  However I had not been to trial or convicted of any crime in my entire life.  In January 1996, my 2 month old daughter fell down a flight of steps in her swing, I panicked, and shook her in an attempt to revive her.  She died 8 days later from head trauma.  I was arrested in April 1996 and released.  I was being charged with 1st degree MURDER!  Headquarters Company, Headquarters & Service Battalion, began paperwork for my discharge then & there, and I went before a board soon after, in notice of intention to discharge me for a suspicion of a crime in did not commit!!!.  I continued my work in consolidated administration (conad) in HQCO, HQSVCBN, Quantico, even though I was to be discharged my wife and I were (and are) emotional wrecks.  I had difficulty concentrating on my job, with good reason.  In July 1996 I went to trial in Prince Williams Co (Manassas Court) for the death of my daughter.  Instead of a 1st degree murder conviction, like the common wealth wanted, I was convicted of a lesser charge, involuntary manslaughter, it was all an accident as I had professed since the beginning, even before the discharge board, yet I am not only separated from my wife, and god bless her, deceased daughter, I am in prison serving 5 years, and potentially living the rest of my life with and other that honorable discharge.  I am trying to put my life back together, and this upgrade would be the first step in doing so, i.e. restoring my V/A Benefits etc.  I have 2 years left on this sentence, and when I am released, my wife (also a former marine) and I need some stability.  Can you help us?  The document I have enclosed illustrate that although I was not the cream of the crop, I was a good marine.  The Navy Achievement Medal I was awarded was for being a member of the ceremonial platoon under a gunnery sergeant J_____ P W______.  I was part of over 50 details in honor of deceased servicemen.  One of the letters of appreciation was for my work in the COC at the Marine Corps marathon when I worked in the S-3, HQCO, HQSVCBN, Quantico under major T_____ M_____.  I want to clear my name.  I want a general discharge under honorable conditions, I want to give my wife, my daughter, and myself a future.  I love the Marine Corps, I miss the corps, I need the corps help, VA benefits: people take them for granted, you know not me.

Documentation

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

Copy of DD Form 214
Letter from Applicant
Service Related Documents (7pgs)

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive:  USMCR(J)		920608 - 930125	COG

Period of Service Under Review:

Date of Enlistment:  930126		Date of Discharge:  960722

Length of Service (years, months, days):

	Active:    03  05  27
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  66

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (6)			Conduct:  4.4 (6)

Military Decorations: NAM 

Unit/Campaign/Service Awards:  Rifle Expert Badge(2nd), NDSM, 
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:

930610:	NJP for violation of UCMJ, Article 113: Sleeping on post while posted as a sentinel at building, TC-837, SOI, MCB, CamLej 0530, 930605.
Awarded forfeiture of $190.00 per month for 1 months (suspended for 6 months), restriction and extra duties for 14 days (4 days suspended for 6 months).  Not appealed.

950411:	Counseled for deficiencies in performance and conduct.  [Continued lack of preparation for the pre CGIP walllocker inspection].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

950609:	Counseled for deficiencies in performance and conduct.  [Dereliction and inattention if duties while executing the duties as a urinalysis observer within HQSVCB S-3 on 4 Apr 95.  As a result of your dereliction, a marine turned in an adulterated urine sample containing alleged"pine oil' vice "SNM's urine"].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

950821:	NJP for violation of UCMJ, Article 86: UA from his appointed place of duty, Ceremonial Plt, at 1300, 950721, violation of UCMJ Article 92: Violate par 41a(1-4), BnO 11101.4A of 21 Sep 93, by consuming alcoholic beverages (Wild Turkey Whiskey), while being under the legal drinking age, violation of UCMJ Article 125:Commit sodomy, to wit: by placing his penis into the mouth of C______ M S_____.
	Award:  Forfeiture of $400 per month for 2 months (suspended for 6 months), restriction for 30 days (15 days suspended for 6 months), and extra duty for 15 days, reduction to E-2.  Not appealed.

951013:	Counseled for deficiencies in performance and conduct.  [Violation of the UCMJ Article 86 UA from appointed place of duty to wit: Line training on or about 0700 27 Sep 95 at HQCo, HQSVCBn, MCB, Quantico, VA.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

951017:	NJP imposed and suspended on 950810 for a period of 6 months is hereby vacated, but only so much of the suspended punishment as provides for the forfeiture of $400.00 pay per month for 1 month is ordered executed this date. 

951228:	Counseled for deficiencies in performance and conduct.  [Specifically your lack of judgement and poor attitude in dealing with your military obligations as indicated on 25 Dec 1995 when you were released from duties as ADNCO to take your child to the hospital and your lack of courtesy to advise the Area Duty Officer of the day on the current status upon arrival at the hospital and failure to advise the officer of the day as to a time frame when you would be able to return to duty.  Your lack of professional attitude toward your responsibilities as a marine as shown by your actions on 25 Dec 95 are indicators that you do not desire to be a team player and are unable to be responsible].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

960408:	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 the Commonwealth of Virginia, Arrest Warrant of 2 April 1996, alleging a violation of Section CR39159, Code of Virginia, specifically; murder.

960411:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

960418:	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 evidenced by the Commonwealth of Virginia, Arrest Warrant of 2 April 1996, alleging a violation of Section CR39159, Code of Virginia, specifically; murder (enclosure (4) refers). 

960702:	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.

960712:	SJA review determined the case sufficient in law and fact.

960719:	GCMCA [Commanding General, Marine Corps Base, 3250 Catlin Avenue Suite 133, Quantico, VA] 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 960722 under other than honorable conditions for misconduct due to the commission of a serious offense (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

In the applicant’s issue 1, the Board found that the applicant did not understand the provisions of the commission of a serious offense; his discharge was proper and equitable.  In addition to the offense for which the discharge was given, the applicant also had five page 11 counseling entries and two NJP’s with a total of four UCMJ violations.  The applicant does have some commendatory material in his service record but, this material does not negate the offense for which he was discharged.  Relief in this case is not warranted.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 Aug 95 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, Article [ e.g., Article 86, unauthorized absence for more than 30 days].

C.  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.  

D.  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.

E.  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 obtain a copy of DoD Directive 1332.28 by writing to:

		DA Military Review Boards Agency
		Management Information and Support Directorate
		Armed Forces Reading Room
		Washington, D.C.  20310-1809

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
		Washington Navy Yard
		720 Kennon Street SE Rm 309
		Washington, D.C.  20374-5023