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

 ex-LCpl, USMC
Docket No. MD04-01127

Applicant’s Request

The application for discharge review was received on 20040701.  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 20041222.  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.  “I asked to be discharged to work things out with my wife.  I should have never left the Marine Corps.  That was the worst thing that ever happened to me.  I miss being a Marine.  There is nothing more that I would love than to once again be a United States Marine.  So I ask the board to please overturn my discharge so that I may once again serve my Country.  My future plans are as follows:  I am currently enrolled in the summer semester Police Academy at Northeastern Junior College located here in Sterling Colorado.  After I graduate from the academy I plan to work for the Sterling Police Department as an officer.  I also plan to enlist as a reservist.  I have learned from my mistakes and plan to make something of myself.  Changing my discharge is just one of many step that I have to take on this life changing journey.  Thank you for your consideration.”

Documentation

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

Applicant’s DD Form 214
Police records check dtd 030402
Employer reference dtd 020322
Police Academy Certificate dtd 030717
Peace Officer Certificate dtd 031015
Northeaster student transcript
Firearms Course certificate dtd 030816
Arrest Control certificate dtd 030816
Driving Course certificate 030816
HAZMAT Awareness certificate dtd July 2003
Police Academy Certificate dtd 030816
OCAT Basic Course Certificate dtd 030816

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		950623 - 960528	COG

Period of Service Under Review:

Date of Enlistment:  960529		Date of Discharge:  991223

Length of Service (years, months, days):

	Active:    03  06  25
	Inactive:  None

Age at Entry:  18			Years Contracted:  5

Education Level:  12			AFQT:  72

Highest Rank:  LCpl			MOS:  0861

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2			Conduct:  4.2 [Extracted from SJA ltr of 991124]

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  3

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:

970219:	Counseled for deficiencies in performance and conduct.  [Dereliction of duties and apathetic attitude towards scholastic studies.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

980212:	NJP for violation of UCMJ, Article 91:  Spec 1:  Disobey a lawful order from Cpl M_.  Spec 2:  Disobey lawful order from SSgt S_ .
	Award:  Forfeiture of $539 per month for 1 month(s), restriction and extra duty for 30 days, reduction to E-2.  No indication of appeal in the record.

990514:	Intervention and Treatment Branch Case Review on spoual abuse case of 8 April 99.  Substantiated Level IV.

990602:	Intervention and Treatment Branch Case Review on child abuse case of 8 April 99.  Substantiated child endangerment of eight month old and two year old dependents.  Recommend 52 Week Domestic Violence Program, New Parent Support Program, Referral to Mental Health, Individual Counseling, MPO to remain in effect.

991014:	Applicant assigned to liberty risk program.

991013:	Psychiatric Evaluations:
		AXIS I:  
Occupational and Partner Relation Problems
			Alcohol Abuse
			Adjustment Disorder with Depressed Mood
		AXIS II:  
			Narcissistic Personality Disorder
		AXIS III:
			Hx of Asthma
Recommendation:  Fit for duty but a continuing danger to himself by suicide therefore recommend expeditious administrative separation.

991025:	Counseled for deficiencies in performance and conduct.  [Insubordinate conduct while addressing seniors and being UA from appointed place of duty.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

991109:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and by reason of personality disorder as evidenced by substantiated domestic violence and the recommendation of the division psychologist.

991109:	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.

991110:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and by reason of a personality disorder.  The factual basis for this recommendation was the substantiated case of domestic violence and recommendations of the division psychologist.  

991210:	SJA review determined the case sufficient in law and fact.

000103:	GCMCA [CG, 3MARDIV] 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 19991223 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).

Issue 1.  When the service of a Marine has been honest and faithful, it is appropriate to characterize that service as honorable.  An Under Other Than Honorable Conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by nonjudicial punishment proceedings for violations of Article 91 of the UCMJ.  The Applicant was counseled  for insubordinate conduct.  There is also evidence of substantiated domestic violence to include spousal abuse and child endangerment.  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 Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

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.  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.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that his discharge was appropriate and that his evidence of post-service conduct was found not to mitigate the conduct for which he was discharged.  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.  Relief denied.

Concerning reenlistment, the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

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.  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 18 Aug 95 until 30 Jan 97). 

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 128, assault.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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:

		Secretary of the Navy Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023