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

ex-LCpl, USMC
Docket No. MD01-00353

Applicant’s Request

The application for discharge review, received 010126, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested 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 010822.  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. 6210.7.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  In my time of service, I've never showed any time of misconduct while on active duty.  I received a honorable discharge my first enlistment.  While on duty I was a model Marine.  Before my conviction I was already discharged.  But it wasn't final until 990701.  I served my country with all my heart.  I never did anything wrong in my time of service.

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		930629 - 961126	HON
	Inactive: USMCR(J)		921030 - 930628	COG

Period of Service Under Review:

Date of Enlistment:  961127		Date of Discharge:  990701

Length of Service (years, months, days):

	Active:    02  07  05
	Inactive:  None

Age at Entry:  22			Years Contracted:  4 

Education Level:  12			AFQT:  35

Highest Rank:  Cpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (6)			Conduct:  4.2 (6)

Military Decorations:  None

Unit/Campaign/Service Awards: NDSM, GCM, HSM, AFSM, SSDR, JMUA, Rifle Marksman Badge

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. 6210.7 

Chronological Listing of Significant Service Events:

980705:	In hands of civilian authority.

990616:	GCMCA [Commander, 2d MAW] advised CMC that applicant's discharge was directed and he will be separated under conditions other than honorable by reason of misconduct due to commission of a serious offense and he will be administratively reduced to Lance Corporal to become effective upon separation.

NO OTHER INFORMATION AVAILABLE IN SERVICE RECORD.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged in absentia on 990701 under other than honorable conditions for misconduct due to a civilian conviction (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).

The applicant stated he never showed any time of misconduct while on active duty.  However, the official record notes he was held by civilian authorities pending trial for a serious offense for at least two months during his last enlistment.  While the nature of the serious offense is not known, the Board presumes that it was such that a punitive discharge would have been authorized for the same or closely related offense under the UCMJ.  A civilian or military conviction is not required for a Marine to be discharged under the provisions for commission of a serious offense.   The applicant has provided no credible evidence that the contested discharge was inequitable or improper.   Relief denied.

The applicant stated he received an honorable discharge for his first enlistment.  This Board is authorized to examine only the enlistment during which the other than honorable discharge was awarded.  Honorable prior service is not cause for relief.

The following is provided for the applicant’s edification.  The NDRB is authorized to consider outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  However, there is no law or regulation that provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the service.  Normally, to permit relief, an error or injustice must be found to have existed during the period of enlistment in question.  No such error or injustice is evident in the applicant’s service record. Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  At this time the applicant has not provided sufficient documentation of good character and conduct.  Therefore no relief will be granted.  The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is highly recommended but not mandatory.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210, Misconduct of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D), 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.

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 view DoD Directive 1332.28 and other Decisional Documents by going online at “afls10.jag.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:

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