Author: CAP
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Docket No. MD02-01309

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

 ex-LCpl, USMC
Docket No. MD02-01309

Applicant’s Request

The application for discharge review, received 020909, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The Applicant requested 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 030722.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the Applicant’s service.  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 submitted

1.  I feel the command, which I was assigned to, do not feel that my situation was of any concern to them and wanted to make an example of me, so they let me handle the situation by myself without offering me any assistance.  I would appreciate your decision on this matter of upgrading my discharge.

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		880615 - 950621	HON
	Inactive: USMCR(J)		870622 - 880614	COG

Period of Service Under Review:

Date of Enlistment:  960529		Date of Discharge:  980417

Length of Service (years, months, days):

	Active:    01  10  19
	Inactive:  None

Age at Entry:  26			Years Contracted:  4 

Education Level:  12			AFQT:  40

Highest Rank:  CPL

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.5 (9)			Conduct:  4.1 (9)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Marksmanship Badge, LOC, COC

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:

960529:	Reenlisted at I-I STF BATTERY N/5/14 EL PASO TX for 4 years.

970821:	Counseled for deficiencies in performance and conduct.  [Financial irresponsibility which resulted in the command receiving several returned personal checks due to insufficient funds and the subsequent repossession of a personal vehicle.  Applicant is responsible for the financial well being of dependents to include obligations legally made through creditors.  His financial obligations reflect a lack of self discipline and proper judgment expected of a Marine NCO.  Understand that such conduct is unacceptable and will not be tolerated and that any further violations can and will result in administrative and/or punitive actions.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

971031:	Counseled for deficiencies in performance and conduct.  [Concerning termination of Temporary Additional Duty (TAD) orders from Marine Aviation Logistics Squadron 12 (MAL-12) for cause.  Numerous financial problems which prevents Applicant from being able to perform his primary duties in an acceptable manner.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

980116:	Counseled for deficiencies in performance and conduct.  [On or about 971225, Applicant arrested by San Diego Police Department for suspicion of spousal abuse and assault with a deadly weapon.  This arrest led to confinement and a subsequent In Hands of Civilian Authorities status from 971225 to 980116.  Applicant issued a Military Protection Order by the Executive Officer effective this date to prevent further incidents of spousal abuse.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

980120:	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 pattern of misconduct.

980128:	Applicant advised of his rights and having elected to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to make a statement and to obtain copies of the documents used to support the basis for the separation.

980205:	NJP for violation of UCMJ, Article 86: UA from MALS-11 P/P Div, MCAS Miramar from on or about 971229 until about 980116 as a result of SNM's confinement directed by civil authorities; violation of UCMJ, Article 92: Disobeying a lawful order, specifically Military protection order dtd 980116.
Awarded forfeiture of $615.00 pay per month for 2 months (suspended for 6 months) extra duties for 45 days, reduction to E-3.  Not appealed.

980311:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct and misconduct due to the commission of a serious offense.  The factual basis for this recommendation was arrest by San Diego Police Department for suspicion of spouse abuse and assault with a deadly weapon on or about 971225 and counseling entries of 970821 and 971031 regarding financial irresponsibility.  

980321:	SJA review determined the case sufficient in law and fact [Letter dated 970321].

980401:	GCMCA [Commanding General, 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 980417 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.  A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a Marine.  The Applicant’s service was marred by award of nonjudicial punishment (NJP) on one occasion for a serious offense and adverse counseling entries on other occasions.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service.  While he may feel that he did not receive equitable support from his chain of command regarding his personal problems, the record is devoid of evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  An upgrade would be inappropriate.  Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country.  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 during the Applicant’s enlistment.  Additionally, 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.  Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his 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 31 January 1997 until present). 

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 92, disobeying a lawful order.

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

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
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