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

ex-LCpl, USMC
Docket No. MD04-00516

Applicant’s Request

The application for discharge review was received on 20040209.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance discharge review before a traveling panel closest to San Diego, CA.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area.

Decision

This is not a completed Decisional Document; it is a working Draft designed to facilitate the requested personal appearance hearing.  Only Parts I-II are provided.  Those Parts will be modified, as appropriate, in the final Decisional Document, which will be developed after completion of the actual hearing.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I was a hard nose E-7 to all my troops several of the women marines got together and charged me with sexual harassment with no evidence at all, the C.O. put me before an admin sept Board with his friend who recommended I be discharged.  Most senior officers who knew me had informed me that it was a closed case prior to the proceedings, The C.O. had stated where there is smoke, there is Fire.

2.  The C.O. was mad at me since I was up for E-8 and I received a DUI In 1993 the same year I should have made E-8. with 7 years in grade.  He didn’t like me since, especially after he found out I was married to a Caucasian woman, and he told us upon his arrival to MCRD that her Daughter had been attacked by a Black man, which was none of the commands Business.”

Documentation

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

None at this time.

PART II - SUMMARY OF SERVICE

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

	Active:    USMC		760427 - 780828	HON
		    USMC		780829 - 820729	HON
		    USMC		820730 - 861125	HON
		    USMC		861126 - 910515	HON
	Inactive:  None

Period of Service Under Review:

Date of Enlistment:  910516		Date of Discharge:  931221

Length of Service (years, months, days):

	Active:    02  07  06
	Inactive:  None

Age at Entry:  35			Years Contracted:  5

Education Level:  12			AFQT:  45

Highest Rank:  GySgt		MOS:  3381

Final Enlisted Performance Evaluation Averages:  No Enlisted performance reports were found in service record.

Military Decorations:  None

Unit/Campaign/Service Awards:  REB (7), PEB (2), NDSM, NAM, SSDR, GCM (4), MUC, CoC

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) admin discharge board required but waived, authority:  MARCORSEPMAN Par. 6210.6.

Chronological Listing of Significant Service Events:

910516:	Applicant reenlisted for 5 years.

920416:	Counseled for deficiencies in performance and conduct.  [Operating a vehicle while intoxicated.  This type of conduct will not be tolerated in this command.  You are a Marine SNCO and must maintain the standards and conduct expected of all who serve in our Corps.  Leadership by example is the hallmark of a good SNCO.  Remember, be a keeper of tradition.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  [Par 6210 states:  “Counseling and rehabilitation are not required if the basis of separation is a serious offense, a civilian conviction or similar juvenile adjudication, or a serious offense or civilian conviction involving drug abuse.”]

931001:	Criminal Investigative Report: 

931118:	Counseled for deficiencies in performance and conduct.  [Violation of a Military Protective Order directing me to refrain from direct contact with R_ P_, J_ S_ and B_ S_ unless accompanied by an authorized command representative and refrain from any phone conversations of a threatening or disruptive nature.  I understand that any further violation of the Military protective Order can result in charges brought before a court-martial and pre-trial confinement.]  Sources of assistance provided.  [Par 6210 states:  “Counseling and rehabilitation are not required if the basis of separation is a serious offense, a civilian conviction or similar juvenile adjudication, or a serious offense or civilian conviction involving drug abuse.”]

931118:	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.

931216:	SJA review determined the case sufficient in law and fact.

931220:	GCMCA [Commanding General, Marine Corps Recruit Depot/Western Recruiting Region, San Diego, CA] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

930604:	NDRB documentary record review Docket Number MD96-00062 conducted.  Determination:  discharge proper and equitable; relief not warranted.

Parts of Applicant’s discharge package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19931221 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 XXXXXXXXXXXXXXXXXXXXXXX 

[or], if appropriate, add the following:
The Applicant introduced no decisional issues for consideration by the Board.

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.  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 “http://Boards.law.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