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

ex-Pvt, USMC
Docket No. MD04-00065

Applicant’s Request

The application for discharge review was received on 20031006.  The Applicant requests the 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 list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040812.  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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I am requesting my discharge to be upgraded to an Honorable Discharge because prior to and after my discharge I can now see what type of person I was.  At the age of 19, I was young and immature, my mind and body were focused on something else, my fiancée at the time, K_ R_.  I have grown mentally and physically, and now I want to further my career and my life by becoming a Network Engineer, working on computers and their systems is something I have wanted to do for a long time.  I believe, now, I deserve the opportunity to further myself utilizing the GI Bill.”

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		960117 - 960820	COG

Period of Service Under Review:

Date of Enlistment:  960821		Date of Discharge:  980624

Length of Service (years, months, days):

	Active:    01  10  04
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  63

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (3)			Conduct:  4.2 (3)

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR

Days of Unauthorized Absence:  None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.3.

Chronological Listing of Significant Service Events:

970820:	NJP for violation of UCMJ, Article 86:
Specification: Absent from PT formation on 0530-0545, 970805.
Awarded forfeiture of $300.00 per month for 2 months, restriction and extra duties for 30 days, reduction to PFC.  Forfeiture and reduction suspended for 6 months.  Not appealed.

971001:	Vacate forfeiture and reduction awarded at NJP dated 870820.

971001:	NJP for violation of UCMJ, Article 86:
Specification: Unauthorized absence from restriction muster from 0600 to 0645.
Violation of UCMJ, Article 92:
Specification: Violated his restriction orders by leaving barracks without permission after 2145 check in, on 2335, 970904.
Awarded forfeiture of $459.00 per month for 2 months, restriction and extra duties for 45 days, reduction to Pvt.  Forfeiture for 1 months and reduction suspended for 6 months.  Not appealed.

980117:	Applicant to confinement.

980121:	Applicant from confinement.

980312:	Special Court Martial:
	Charge I: violation of the UCMJ, Article 134 (2 specs):
	Specification: Commit an indecent assault, a person not his wife, by touching her hands, back, and buttocks, with the intent to gratify the lust and sexual desires on 980110.
	Specification 2: Commit an indecent act upon a female under 16 years of age, not his wife by placing his hands upon her hands, back, and buttocks, with intent to gratify the lust and sexual desires and with intent to arouse or appeal to the lust and sexual desires of said female on 980110.
	Findings: to Charge I and II specifications thereunder, guilty.
	Sentence: Confinement for 4 months, forfeiture of $500 per month for 4 months, reduction to Pvt.
	CA Not found in service record.

980327:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

980327:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

980327:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  

980415:	Counseled for deficiencies in performance and conduct.  [Pattern of misconduct.  Since my arrival at MWSS-171 on 970409, I have received one NJP on 970820 for violation of Article 86 being UA from PT formation on 970805.  On 971001, my suspended punishment from NJP held on 980820 was vacated for violation of Article 86, UA from restriction muster and violation of Article 92, violation of restriction orders.  On 971001, I received my second NJP for violation Article 86, UA from restriction muster and violation of Article 92, violation of restriction orders.  On 980312, I received a special court-martial for violation of Article 134, indecent assault on a female not my wife and violation of Article 134, indecent act upon a female not my wife under the age 16 years old.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980422:	SJA review determined the case sufficient in law and fact.  I do not, however, concur with the recommendations of the Commanding Officer, Marine Wing Support Group 17, and the Commanding Officer, Marine Wing Support Squadron 171, that the Marine be discharged with an Under Other Than Honorable Conditions characterization.  Per paragraph 1004 of the reference (MCO 1900.16E (MARCORSEPMAN)), where an individual has been convicted at a special court-martial, for the same offense(s) which form the basis of the proposed administrative separation, and the individual has been retained by that same special court-martial, nothing less than a General (under honorable conditions) discharge shall be ordered unless approval is received from the Secretary of the Navy.  Therefore, I believe the SNM should be discharged with an General (under honorable conditions) characterization by reason of misconduct due to a pattern of misconduct.

980424:	GCMCA [Commanding General, 1st Marine Aircraft Wing] directed the Applicant's discharge general (under honorable conditions) by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19980624 under other than honorable conditions for misconduct due to a pattern of misconduct (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).

Issue 1.  The Applicant contends that his problems in the Marine Corps can be attributed to his being "young and immature."  While he may feel that his immaturity was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  

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 other evidence related to his discharge at that time.  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 31 Jan 97 until 31 Aug 01. 

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 view DoD Directive 1332.28 and other Decisional Documents by going online at “afls14.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