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

ex-Pvt, USMC
Docket No. MD03-00986

Applicant’s Request

The application for discharge review was received on 20030514.  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 listed Department of Veterans Affairs as the representative on the DD Form 293.  Applicant subsequently dropped counsel.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040412.  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 CONDITIONS OTHER THAN HONORABLE/INVOL DIS (BOARD WAIVED) (MISCONDUCT), authority: MARCORSEPMAN Par. 6210.7.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

No issues were submitted by the Applicant.

Submitted by Applicant subsequent to submission of application:
Documentation

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

Applicant’s DD Form 214
Applicant’s statement, undated
Parole Completion Ltr, dated February 18, 2003
Criminal record check, dated May 2, 2003
Certificate of completion of Master Locksmithing, dated May 21, 2000
Certificate of Baptism, dated February 15, 1998
Certificate of completion of Steamfitters, dated June 1, 2001

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		900824 - 910819	COG

Period of Service Under Review:

Date of Enlistment:  910820		Date of Discharge:  950615

Length of Service (years, months, days):

	Active:    03  09  26
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  36

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (10)			Conduct:  4.2 (10)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, Letter of Appreciation

Days of Unauthorized Absence:  None

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER CONDITIONS OTHER THAN HONORABLE /INVOL DIS (BOARD WAIVED (MISCONDUCT), authority:  MARCORSEPMAN Par. 6210.7

Chronological Listing of Significant Service Events:

921217:	Applicant informed eligible but not recommended for promotion to Cpl for the period of Jan, Feb, Mar because of my recent investigation pending NJP.

930113:	NJP for violation of UCMJ, Article 92:
Specification: Failed to obey MCSFCo Order 1050.1B dated 921105, by consuming alcohol under the legal age of 21.
Violation of UCMJ, Article 123:
Specification: With intent to defraud, alter his military ID card by laminating the back of another’s military ID card to the front of his military ID card, which if genuine, would make him appear to be over 21 years of age.
Awarded forfeiture of $440.00 per month for 2 months, restriction for 45 days, reduction to PFC.  Restriction suspended for 6 months.  Not appealed.

930208:	Vacate suspended restriction awarded at CO’s NJP on 930113.

930208:	NJP for violation of UCMJ, Article 92:
Specification: Underage alcohol consumption, to wit: violation of CO’s Company Order 1050.1B of 921104.
Awarded forfeiture of $405.00 per month for 2 months, restriction for 45 days, reduction to Pvt.  Forfeiture and restriction suspended for 6 months.  Not appealed.

930210:	Counseled for deficiencies in performance and conduct.  [Alcohol related incident, specifically, blatant disregard for my Commanding Officer’s order not to consume alcohol under the legal age of 21, which has resulted in my second NJP.]  Applicant advised that incident could result in an administrative separation 

931012:	Applicant informed eligible but not recommended for promotion to PFC for the months of September, October because of my pending negligence homicide charges.

931209:	Applicant informed eligible but not recommended for promotion to PFC for the months of November, December because of my pending civil action.

931210:	Applicant informed eligible but not recommended for promotion to PFC for the month of January because of my pending civil action.

940421:	Applicant informed eligible but not recommended for promotion to PFC for the month of February, March because of my pending civil action.

940513:	Civil Conviction: Circuit Court for Charles County, MD for violation of: (1) Manslaughter by motor vehicle.
(2) Reckless driving.
(3) Speeding.
(4) Speed greater than reasonable and prudent.
Sentence: (940802) Jail for 6 years, all but 3 years suspended.  Upon release supervised probation for 5 years.

940804:	Applicant in hands of civilian authorities.

950203:	Applicant notified of intended recommendation for discharge under condition other than honorable by reason of misconduct due a commission of a serious offense and misconduct due to civilian conviction.

950311:	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.

950315:	Commanding officer recommended discharge under condition other than honorable by reason of misconduct due a commission of a serious offense and misconduct due to a civilian conviction.  The factual basis for this recommendation was your conviction of manslaughter with a motor vehicle in Charles County, MD on 940802.  

950522:	SJA review determined the case sufficient in law and fact.

950601:	GCMCA [Commanding General, 2d Marine Division, MarForLant] directed the Applicant's discharge under conditions other than honorable by reason of misconduct due to civilian conviction.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19950615 under conditions other than honorable for misconduct due to a civilian conviction (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.

The Applicant's other than honorable discharge was proper and equitable.  The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted.  There is no evidence of impropriety, inequity or procedural irregularities in the Applicant's discharge.  The Applicant's misconduct is clearly documented.  He acknowledged and waived his rights to administrative review.  The Applicant was afforded the appropriate due process during the processing of his case.  The NDRB found that the aggravating factors in this case outweighed any mitigating and extenuating factors either presented by the Applicant or contained in his record.  An upgrade of the Applicant's discharge to general/under honorable conditions characterization is not warranted.  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 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 P1900.16D), 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 92, failure to obey lawful order and Article 123, with intend to defraud, alter military ID card.

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