Author: CAP
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Docket No. MD05-00352

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

 ex-LCpl, USMC
Docket No. MD05-00352

Applicant’s Request

The application for discharge review was received on 20041217.  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.  In the acknowledgement letter the applicant was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington, DC area.  The Applicant did not respond.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050330.  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 – Commission of a serious offense (all other) with admin discharge board, authority: MARCORSEPMAN Par. 6210.6.

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PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “Have not been in any type of trouble (conviction was unjust).”

2.  “Did not have proper counsel in this case, and do to years of faithful service, I request that type of discharge be upgraded, so that I can continue military service to my country.”

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		830202 - 860616	HON
	Inactive: USMCR(J)		820630 - 830201	COG

Period of Service Under Review:

Date of Enlistment:  860617		Date of Discharge:  910105

Length of Service (years, months, days):

	Active:    03  03  05		[Excludes lost time]
	Inactive:  None

Age at Entry:  21			Years Contracted:  4

Education Level:  12			AFQT:  30

Highest Rank:  SGT			MOS:  0311

Enlisted Performance Evaluations: 

Average marks for proficiency and conduct for the period 860617 – 890731:
Proficiency:  4.6 (8)			Conduct:  4.6 (8)

Fitness reports for the period 890801 – 910105 were not found in the record.

Military Decorations:  None

Unit/Campaign/Service Awards:  REB(2), GCM(2), MUC(2), MM(2), SSDR(2)

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) with admin discharge board, authority:  MARCORSEPMAN Par. 6210.6.

Chronological Listing of Significant Service Events:

860617:	Reenlisted at Camp Lejeune, NC for 4 years.

880325:	Counseled for deficiencies in performance and conduct. [Concerning his lack of attention to detail in reference to his absence for duty driver.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

890922:	Applicant apprehended by civil authorities.

891011:	Civil Conviction:  [Supreme Court of the State of New York County of Kings] for 1^st degree robbery (3 counts).
Sentence: 2 to 6 years in New York State Department Correctional Services.

900115:	Applicant notified of intended recommendation for discharge by reason of misconduct due to the commission of a serious offense with the least favorable characterization of service as under other than honorable conditions.

900125:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

901010:	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.

900804:	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 your civilian conviction for Robbery First Degree and sentencing to 2 to 6 years. 

901210:	SJA review determined the case sufficient in law and fact.

901226:	GCMCA [CG MCB QUNATICO] 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 19910105 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.  The statements provided by the Applicant do not refute the presumption of regularity in this case.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  The Applicant was convicted of committing robbery in civil court on 19891011 and was subsequently found to have committed a serious offense at his Administrative Discharge Board on 19901010.  Relief denied.  

Issue 2.  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 robbery, thus substantiating the misconduct for which he was separated.  The Board found no indication in the record that the Applicant was inequitably or improperly denied proper counsel. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable.  Relief denied.

Concerning reenlistment, neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment.  A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  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 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 122, robbery.

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

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.