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

 ex-LCpl, USMC
Docket No. MD04-00131

Applicant’s Request

The application for discharge review was received on 20031027.  The Applicant requested the characterization of service received at the time of discharge be changed to honorable.  The Applicant requested a personal appearance hearing before the board in the Washington National Capital Region.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.  The Applicant did not list a representative on his DD Form 293.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040628.  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/Misconduct – Commission of a serious offense (all other) with administrative discharge board, authority: MARCORSEPMAN Par. 6210.6.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

Issue 1:  “My discharge states that I was discharged because of a commission of a serious offense based on my arrest by civilian authorities on 910426 for criminal conspiracy.  However, these charges were dismissed and all records pertaining to the case ere destroyed on 910925.  It is my opinion that my superiors were not satisfied with the outcome and attempted to punish me themselves by discharging me and using me as an example.”

Issue 2:  “While I was in the service, I received a Good Conduct Medal, went to college, did numerous non resident courses the Marine Corps offered.  I even volunteered to go to jump school.  I wanted to do everything the Corps had to offer.  I would volunteer whatever was available, but was denied because my job was too important and they wouldn’t be able to replace me while I would be away.  So obviously, my performance was good even though it wasn’t described as such.”

Issue 3:  “The death of my daughter, while I was in the military, had affected me psychologically.  I feel that I was abandoned at a time that I needed help.  During that time I wasn’t myself.  I know what I did was wrong, but I feel that I should’ve been helped instead of being thrown out to the street.  The Corps had invested time on me.  I was prepared to give my life for it.”

Issue 4:  “To this day, I speak highly of the Corps, even though I live with my shame that haunts me everyday.  Since my dismissal, I have been a good civilian.  I finished my college degree and own my own business.  I have a son who’s aspiring one day to be a Marine pilot.  I’m asking the board to please reconsider my dismissal and change it to Honorable.”

Documentation

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

Order for the Destruction of Arrest Records, dtd 7 Oct 1991.

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None			HON
	Inactive: USMCR (J)		871030 - 871116	COG
Inactive: USMCR (J)		860920 - 870910	MDQ

Period of Service Under Review:

Date of Enlistment:  871117		Date of Discharge:  910925

Length of Service (years, months, days):

	Active:    03  10  08		Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  69

Highest Rank:  Cpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.6 (10)			Conduct:  4.6 (10)

Military Decorations:  GCM

Unit/Campaign/Service Awards:  SSDR, NDSM

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct-Commission of a serious offense (all other) with administrative discharge board, authority:  MARCORSEPMAN Par. 6210.6.

Chronological Listing of Significant Service Events:
910724:	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 Applicant’s “arrest on 26 April 1991 by the Beaufort County Sheriff Department (for) criminal conspiracy to commit grand larceny after you accepted delivery of a 1991 Chevrolet Van which (the Applicant) believed to be stolen from Love Auto Mall.”

910726:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

910821:	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.

910905:	Commanding officer concurred with the findings of the Administrative Discharge Board and 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 the preponderance of the evidence, which supported the Applicants arrest for conspiracy to commit grand larceny.  

910916:	SJA review determined the case sufficient in law and fact.

910916:	GCMCA [Commanding General, 2s Marine Aircraft Wing] 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 19910925 under other than honorable conditions for misconduct due to the commission of a serious offense (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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).

Issue 1:  The Applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity is evident.  The record clearly shows by a preponderance of the evidence presented the Applicant had committed the misconduct, which resulted in the filing of charges by civilian authorities.  Subsequent dismissal of charges by civil authorities does not preclude the member’s processing for administrative separation, or a finding that the member committed the misconduct.  Relief denied.

Issue 2:  The Applicant states his outstanding performance; excellent proficiency and conduct marks and his receiving a Good Conduct Medal demonstrate his character.  The Board agrees the Applicant had good proficiency and conduct marks, but his performance prior to the misconduct does not mitigate his offense.  The record is void of any evidence the Applicant was not responsible for his conduct, that he was treated unfairly or that he should not be held accountable for his actions. The record clearly reflects his disregard for the requirements of military discipline and demonstrated he was unfit for further service.  Relief denied.

Issue 3:  The Applicant contends his problems were the result of stress caused by his family situation resulting from the death of his daughter.  The NDRB recognizes that serving in the Marine Corps is challenging.  Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country.  It must be noted that most members of the Marine Corps serve honorably thereby earning honorable discharges regardless of the stress they encounter during their enlistments.  In fairness to those Marines, commanders and separation authorities are tasked to ensure the undeserving receive no higher characterization than is due.  Relief denied.

Issue 4:  There is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in civilian life, subsequent to leaving the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  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.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and evidence of a substance free lifestyle, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.  The Applicant’s evidence of post-service conduct was found not to mitigate the offense for which he was discharged.  He is reminded he 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 additional documentation to support any claims of post-service accomplishments at that time.  Representation at a personal appearance hearing is recommended but not required.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210, Misconduct The Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 27 Jun 89 until 17 Aug 95. 

B.  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.  

C.  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.

D.  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	

 (2) If the board recommends a general characterization of service, the separation authority may agree and take final action or recommend an honorable characterization to the CMC (MMSR-3) for final action.

(3) If the board recommends an honorable characterization of service, the separation authority should take final action.

(4) Regardless of the board's recommended characterization of service, if the separation authority recommends retention, the case must be forwarded to the CMC (MMSR-3) for final action.”

X.  Paragraph 1004.3c of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D, effective 890627 until 950817), Types of Characterization, states with regard to an under other than honorable conditions characterization:

“(1) This characterization may be issued when the reason for separation is based upon behavior or omission that constitutes a significant departure from the conduct expected of a Marine.  (Examples of factors that may be considered include, but are not limited to, the use of force or violence to produce serious bodily injury or death, abuse of special positions of trust, disregard of customary superior-subordinate relationships, acts or omissions that seriously endanger the health and safety of others, and drug abuse.)

 (2) This characterization is authorized only if the member has been afforded the opportunity to request an administrative board, except in cases of separation in lieu of trial by courts-martial.

(3) When a Marine serving in pay grade E-4 or above is administratively separated with an other than honorable characterization of service, the Marine shall be administratively reduced to pay grade E-3, such reduction to become effective upon separation.”

OPTIONAL FINDINGS

X.   Table 1-1, Characterization Of Service, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D, effective 890627 until 950817), Rule 8, states that if a Marine is being separated under a provision of chapter 6, characterization of service is as directed by the separation authority.