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Docket No. MD05-00607

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

ex-LCpl, USMC
Docket No. MD05-00607

Applicant’s Request

The application for discharge review was received on 20050223.  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 review was conducted in Washington, D.C. on 20050629.  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/INVOL DIS (BOARD) (MISCONDUCT) SERIOUS MIL/CIV OFFENSE, authority:  MARCORSEPMAN Par. 6210.6.

	

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

1.  “My discharge was inequitable because it was based upon one isolated incident.”

2.  “My discharge was inequitable because it was not reflective of my commitment to my unit and dedication to the Marine Corps.”

3.  “I ask you to please give my proceedings serious considerations.  I realize that my reason for separation is serious and the conduct does not reflect that of a Marine.  However, that incident is not a true reflection of me or my love and dedication to the Marine Corps.  At the time of my offense, my only thought was coming to the aid of another Marine.  Looking back on the situation it’s easy for me to see all of the things I should have done differently; but at that moment, in the heat of the moment, my only thought was so secure the safety of the other Marine.
      Since my separation I have remained discipline free.  I have no other law infractions of any kind.  I’ve furthered my education and am proud to have received Diploma’s and/or Certificates of Completion in Accounting, Property Management, Psychology and several other disciplines.  Additionally, I’ve been actively involved in several self-help groups promoting positive change and teaching positive parenting skills in negative environments.  Joining the Marine Corps is one of the best decisions I’ve ever made.  The Corps influence is still very present in my life today.  It was my dream to be a career Marine.  However, one bad decision on my part hindered that dream.  Nvertheless, I am and will always be a proud Marine.  I am not, however, proud of my separation.  It does not reflect myrespect for the Corps.  I ask you to please grant my petition and upgrade my discharge to General/Under Honorable Conditions.
Respectfully, 

[signed]  S_ G. H_”

Documentation

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

1.  Letter of recommendation from A. M. T_, Associate Warden, Central Operations, Ironwood State Prison, dated November 13, 2000
2.  Letter of recommendation from L. N. V_, CCI, dated December 16, 2002
3.  Ironwood State Prison Education Progress Report, dates of Chrono, October 1, 1998 and December 8, 1998
4.  Certificate of Completion, from I_ A_ J_, Muslim Chaplain, Correctional Training Facility Central, dated January 29, 2004 and recommendation from Mr. B. R_, “B” Bridging Program Instructor, dated January 29, 2004
5.  Letter from L_ D_, Vocational Instructor, dated December 7, 1998
6.  Letter of Completion of The Professional Bookkeeping and Accounting Course, Professional Career Development Institute, Dr. M_ M_, National Director of Education, dated March 23, 1999
7.  Certificate of Completion, The Philosophy of Fatherhood, Muslim Development Center, dated April 30, 2001
8.  Certificate of Completion, Entrepreneur Development Sales/Man/Ship Class, Muslim Development Center, dated April 30, 2001
9.  Certificate of Completion, Alternative Parenting, undated
10.  Alternative Parenting Certificate, A. M. T_, undated
11.  Certificate of Completion, Alternative Parenting, dated August 8, 2000
12.  Certificate of Recognition, 40 hours or more in Literacy, dated September 2, 1998
13.  Certificate of Achievement, 51 hours of tutoring, dated October 21, 1998
14.  Certificate of Completion, Volunteer Tutor Workshop, July 30, 1998
15.  Certificate of Achievement, Laubach Way to Reading tutor training and 45 hours of tutoring, dated July 30, 1998
16.  Award of Merit, Tutoring, dated September, 1998
17.  Award of Merit, Tutoring, dated June, 1998
18.  Award of Merit, Perfect Attendance, dated June 1998
19.  Award of Merit, Perfect Attendance, dated August 1998
20.  Certificate of Completion, The Professional Bookkeeping and Accounting Program, R_ A. K_, President and L_ M_, President, The school of Bookkeeping and Accounting, dated August 26, 1999
21.  Official Student Transcript, Professional Career Development Institute, dated September 01, 1999
22.  Certificate of Completion, Professional Property Management, dated August 17, 2000
23.  Fresno Pacific University, Certificate of Completion, Psychology Course dated January 8, 2001, and Math Course dated February 8, 2002
24.  Certificate of Completion, Business principles and Management, dated December 8, 1998
25.  Certificate of Completion, Electronic Calculations, dated November 30, 1998
26.  Certificate of Completion, Shop and/or Site Safety, dated June 24, 1998
27.  Certificate of Completion, Orientation, dated June 24, 1998
28.  Certificate of Completion, Beginning Typing, dated August 21, 1998
29.  Certificate of Completion, Elementary Certification, dated October 19, 1998
30.  Certificate of Completion Proofreading, Punctuation & Spelling, dated October 16, 1998
31.  Certificate of Completion, Intermediate Typing, dated November 2, 1998
32.  Certificate of Completion, Alphabetical Filing, dated September 23, 1998
33.  Certificate of Completion, Intermediate Typing, dated December 8, 1998
34.  Certificate of Completion, Advanced Typing, dated December 8, 1998
35.  Certificate of Completion, Business Law, dated September 25, 1998
36.  Certificate of Completion, Business English, dated August 26, 1998
37.  Certificate of Completion, Business Math, dated October 1, 1998
38.  Certificate of Completion, Accounting, dated September 22, 1998
39.  Certificate of Completion, General Business, dated November 6, 1998
40.  Certificate of Completion, Job Preperation/Career Exploration, dated December 8, 1998
41.  Certificate of Completion, Small Business/Light Industry Education, dated December 8, 1998
42.  Certificate of Completion, Business Principles and Management, dated December 8, 1998
43.  Certificate of Completion, Bookkeeping and Record Keeping, dated December 8, 1998

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR (DEP)		911219 - 921025	COG

Period of Service Under Review:

Date of Enlistment:  921026		Date of Discharge:  950622

Length of Service (years, months, days):

	Active:    01  07  24  (Not to include lost time)
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  72

Highest Rank:  LCpl			MOS:  0341

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4*			Conduct:  4.3*

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, RMB

Days of Unauthorized Absence:  367

*Marks extracted from Staff Judge Advocate Memorandum dtd 950609

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

UNDER OTHER THAN HONORABLE CONDITIONS/INVOL DIS (BOARD) (MISCONDUCT) SERIOUS MIL/CIV OFFENSE, authority:  MARCORSEPMAN Par. 6210.6.

Chronological Listing of Significant Service Events:

940620:	NCIS memorandum:  Subject:  Oceanside Police Department Homicide Investigation.

940620:	Applicant to unauthorized absence at 0701, 940620.

940621:	Applicant was apprehended by 7^th Marine, 1^st Marine Division (Rein) at 1301, 940621.

940622:	Applicant to unauthorized absence, in hands of civilian authorities.

941108:	Applicant’s statement, denies the allegations against him.

941117:	Applicant advised of rights and having consulted with qualified counsel, elected to appear before an Administrative Discharge Board.  In lieu of a hearing, Applicant has included written statements in rebuttal to this proposed separation.  Applicant also request copies of documents.  Applicant does not desire to be separated from the U.S. Marine Corps.

950505:	An Administrative Discharge Board, based upon a preponderance of the evidence, 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.

950605:	Commanding Officer, 1^st Battalion, 7^th Marines recommended to Commanding General, 1^st Marine Division that the Applicant be separated from the U. S. Marine Corps by reason of commission of a serious offense, and that the characterization of service be under Other than honorable conditions.

950606:	Commanding Officer, 7^th Marines (Rein), concurs with Commanding Officer, 1^st Battalion, 7^th Marines that Private First Class H_ (Applicant) be separated from the Marines by reason of a commission of serious offense and that the characterization of service be under than honorable conditions.  SNM is presently in hands of the civil authorities serving his sentence for murder.

950609:	SJA review determined the case sufficient in law and fact.

950615:	GCMCA, Commander, 1^st Marine Division (Rein), FMF advised the Commandant of the Marine Corps, (MMSB), Headquarters, U. S. Marine Corps, Quantico, VA that the Applicant’s discharge directed under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

950622:	DD 214:  Applicant discharged under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

Complete discharge package unavailable

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19950622 under other than honorable conditions by reason of misconduct due to commission of a serious offense (A and B).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (E).

Issues 1 and 2.  Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question.  No such impropriety or inequity is evident during the Applicant’s enlistment.  When the service of a member of the U.S. Marine Corps has been honest and faithful, it is appropriate to characterize that service as honorable or general (under honorable conditions).  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, even if based on a single incident.  The Applicant’s service was marred by a tragic incident involving the murder of a civilian.  This misconduct resulted in a civilian conviction on unspecified charges related to the murder and confinement at the Ironwood State Prison in California.  Under applicable regulations, a violation of UCMJ Article 118, murder, is considered a serious offense.  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.  Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements 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 Naval service.  The NDRB is authorized 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 could 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.  The Board received and considered all of the Applicant’s submissions, including his letters of recommendation, certificates of completion, and achievements in vocational education and training.  After careful consideration, the Board concluded the Applicant’s post-service conduct has been insufficient to mitigate his misconduct while in the Naval service.  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 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 118, murder.

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

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

E.  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.  

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.