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

 ex-Pvt, USMC
Docket No. MD04-00161

Applicant’s Request

The application for discharge review was received on 20031105.  The Applicant requested the characterization of service received at the time of discharge be changed to honorable.  The Applicant requested a documentary record discharge review.  The Applicant listed the American Legion as his 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: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.6.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION
Issues, as stated

The Applicant submitted no issues. 

Issues submitted by Applicant’s counsel/representative (AMERICAN LEGION):

Issue 1.  “Equity Issue:  Based on our review of evidentiary record and on behalf of this former member, we request that the Board consider provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application. 
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In accordance with 32 C.F.R., section 724.166 and SECNAVINST 5420.174C, enclosure (1), paragraph 1.16, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue and following statement in supplement to this Applicant’s petition. 

An administrative error is noted on DD Form 214.  Under current MARCORSEPMAN guidance, Block 28 should read Misconduct vice Misconduct due to commission of a serious offense.

Review of the service record reveals that this former member maintained satisfactory overall PRO/CON markings of 4.3/4.1 and earned the MUC and SSDR.  He was awarded NJP on 980730 for VUCMJ, Art. 86; NJP on 981123 for VUCMJ, Art. 91 and convicted by SCM on 990902 for VUCMJ, Art. 91.  The basis for the discharge processing was spousal assault.  His due process included an ADB which recommended separation UOTHC due to COSO.  His command concurred and he was discharged Under Other Than Honorable Conditions due to misconduct as authorized by MARCORSEPMAN, Par. 6210.6.

This Applicant has not raised any contentions or issues and has not has not submitted any additional documentation for the Board’s consideration.

The American Legion’s express purpose in providing this statement, and any other submittals or evidence filed, is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised.  To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 U.S.C., section 1553, and set forth in 32 C.F.R., part 724 and SECNAVINST 5420.174C, enclosure (1). 

This case is now respectfully submitted for deliberation and disposition.”

Documentation

The Applicant did not submit any additional documentation for consideration by the Board. 

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None			HON
	Inactive: USMCR (J)		960925 - 961021	COG

Period of Service Under Review:

Date of Enlistment:  961021		Date of Discharge:  000114

Length of Service (years, months, days):

	Active:    03  02  24
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  42

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (8)			Conduct:  3.9 (8)

Military Decorations:  None

Unit/Campaign/Service Awards:  MUC, SSDR

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:

971223:	Counseled for deficiencies in performance and conduct.  [Lack of maturity, aggressive behavior and disrespect toward NCOs.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980604:	Counseled for deficiencies in performance and conduct.  [For conducting (himself) in a belligerent way and (being) disrespectful toward NCOs.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980709:	NJP for violation of UCMJ, Article 91:  … treat with disrespect in language toward Cpl H_ …
Awarded forfeiture of $251.00 per month for 1 months, restriction and extra duties for 7 days.  Forf. susp for 6 mos.  Not appealed.

980730:	NJP for violation of UCMJ, Article 86:  did on or about … leave place of duty for which his task was to be at the armory …
Awarded forfeiture of $251.00 per month for 1 months, restriction and extra duties for 14 days.  Not appealed.

981123:	NJP for violation of UCMJ, Article 91:  disrespectful to an NCO.
Awarded forfeiture of $275.00 per month for 1 months, restriction and extra duties for 14 days.  Not appealed.

990615:	Counseled for deficiencies in performance and conduct.  [Conduct unbecoming.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990820:	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 “domestic assault case in which (he) violently assaulted (his) wife.

990820:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

990820:	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 the Applicant’s documented violent assault of his wife.

990902:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 92.
	Specification:  … having knowledge of a lawful order issued by the Commanding Officer, 2d Battalion, 11th Marines … did willfully disobey the same …
	Finding:  to Charge I and the specification thereunder, guilty.
	Sentence:  Reduced to E-1, forfeiture of $639.00 per month for 1 month, and confinement for 30 days.
	CA action 990909:  Sentence approved and ordered executed except for that portion of the punishment adjudging forfeiture of $639.00 per month for 1 month, and confinement for 30 days which is suspended for 6 months.
	
991025:	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.
 
991228:	SJA review determined the case sufficient in law and fact.

991229:	GCMCA [Commanding General, 1st Marine Division] 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 20000114 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).

The Applicant introduced no decisional issues for consideration by the Board.

Issue 1:  With regard to the Representative’s issue, the Board discovered no impropriety or inequity; thereby, considers the Applicant’s discharge proper and equitable. A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a member of the U. S. Marine Corps.  The record is devoid of any evidence the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  The Applicant’s service record is marred by three negative page eleven counseling entries, the awarding of nonjudicial punishment (NJP) on three separate occasions for unauthorized absence and insubordinate conduct, and a Summary Court-Martial for willful disobedience of a lawful order.  The Applicant’s summary of service clearly reflects his disobedience of the orders and directives regulating good order and discipline in the naval service.  His conduct demonstrated he was unsuitable for further service. An upgrade of his discharge characterization to honorable would be inappropriate.  Relief denied.
 
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 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.  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, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.   At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.  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 additional documentation to support any claims of post-service accomplishments 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 January 1997 until 31 August 2001). 

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 86, Unauthorized absence; Article 91, Insubordinate conduct; Article 92, Failure to obey order or regulation.

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