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

 ex-LCpl, USMC
Docket No. MD04-01000

Applicant’s Request

The application for discharge review was received on 20040604.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a documentary record 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 20041122.  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

Applicant’s issues, as stated on the application:

1. “ My discharge was inequitable because it was based on one isolated incident in the 24 months I spent in service.   Please consider my life has changed since my discharge.  It has been very difficult finding employment, however I did turn my life around and make the best of it.  What I’ am asking is that if you can please change my discharge to a general discharge so that I could maintain better employment  please consider.  I realy don’t know what else to say except that it would be A tremendous and appreciated thing if you could please consider that.

Thank you J_ C_ B_ ”

Documentation

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

Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		940523 - 950220	COG

Period of Service Under Review:

Date of Enlistment:  950221		Date of Discharge:  970729

Length of Service (years, months, days):

	Active:    02  05  09 
	Inactive:  None

Age at Entry:  25			Years Contracted:  4 

Education Level:  12			AFQT:  35

Highest Rank:  LCpl			MOS:  3381

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.5 (6)			Conduct:  4.3 (6)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, RSB

Days of Unauthorized Absence: None (368 days IHCA)

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:

941121:	NJP for violation of UCMJ, Article 92 (2 Specs):  
Spec 1: At FSScol, MCSSS, MCB CamLej, 2300, 941108 violated BO 1700.6H by consuming alcoholic beverages in room 328, Bks M-435.
Spec 2: At FSScol, MCSSS, MCB, CamLej, NC, 2300, 941108, having knowledge of Camp Johnson AreaO P11101.5A, violated the same by wrongfully and unlawfully enetering room #328, Bks M-435 , an unauthorized area for male personnel.
Violation of UCMJ, Article 134: AT Bks M-435, FSScol, MCSSS, MCB, CamLej, NC, 2330, 941108, was drunk and disorderly..
	Award:  forf of $300 pay per mo for 2 mos (Total forf $600), 15 das restr to the limits of FSScol, MCSSS, MCB CamLej, w/o susp from du and 15 das extra du, to rum concurrently. Forf of  $300 pay per mo for 1 mo, susp for 3 mos, at which time, unless sooner vacated, will be remitted w/o further act (Total forf susp $300).  No indication of appeal in the record.

941121:	Counseled for deficiencies in performance and conduct.  [Your violation of BO 1700.6H by consuming alcoholic beverages in Room 328, Bks M-435, your violation of Camp Johnson AreaO P11101.5A, by entering room #328, Bks M-435, an unauthorized area for male personnel, and your drunk and disorderly conduct on 941108.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

960423:	Applicant to IHCA, Yuma County Adult Detention Facility, Yuma, AZ.

970114:	Applicant from IHCA returned to duty.

970418:	Applicant to IHCA.

970612:	Report of Preliminary Inquiry in the Case of Lance Corporal J_C_B_ [Applicant].  Applicant was apprehended by civil authorities for a sexual assault that occurred on 960422.  LCpl B_ was IHCA from 960423 – 970114 awaiting trial.  On 97 0114 LCpl B_ was released and returned to his unit pending trial.  On 970305 LCpl B_ appeared in the Superior Court of Arizona, in the county of Yuma, and as a result of a previous plea bargain, the court accepts a no contest plea for aggravated assault. On 970418 LCpl B_ appeared in the Superior Court of Arizona, County of Yuma, for sentencing.  LCpl B_ was sentenced to a term of imprisonment with the Arizona Department of Corrections for a period of 2.5 years, minus 268 days previously served.  In addition, he will serve four months under community supervision consecutive to the prison term.  He was also ordered to pay restitution to the victim in the amount of $550.00, and $375.00 for attorney assessment fees.  Recommendation:  the LCpl B_ should be expeditiously processed for an admin separation due to misconduct, specifically, commission of a serious offense. 

970613:	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 “your plea of No Contest to the charge of Aggravated Assault given and accepted by the Superior Court of Yuma County, State of Arizona on 12 Sep 1996.”

970627:	Applicant advised of rights and having elected not to consult 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.

970703:	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: “Due to LCpl B_ [Applicant] commitment of a serious offense, specifically aggravated assault, and his subsequent sentencing to the Arizona Department of Corrections, he is no longer qualified for further service in the Marine Corps.  I feel that retention of LCpl B_ would be prejudicial to the good order and discipline of the Armed Services and would not be in the best interest of the Marine Corps.” 

970725:	SJA review determined the case sufficient in law and fact.

970728:	GCMCA, CG, 3d 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 19970729 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 states his discharge was inequitable because it was based on one isolated incident in 24 months. Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  The Applicant’s service record is marred by a civil conviction for aggravated assault and he was sentenced to a term of imprisonment with the Arizona Department of Corrections for a period of 2.5 years.   The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.  

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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 naval service.  The NDRB is authorized, however, to consider 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.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided any documentation for the Board to consider.  Relief denied.

 There is no requirement or law that grants recharacterization solely on the issue of obtaining employment or enhancing employment opportunities and this issue does not serve to provide a foundation upon which the Board can grant relief.   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 January 1997 until 31 August 2001). 

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.

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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