Author: CAP
Last saved by: joyce.meeks
Company: NCPB

Docket No. MD06-00920

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

FOR OFFICIAL USE ONLY

 ex-LCpl, USMC
Docket No. MD06-00920

Applicant’s Request

The application for discharge review was received on 20060627.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions).  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20070426.  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 by reason of misconduct due to a pattern of misconduct.

PART I - ISSUES AND DOCUMENTATION

Decisional Issues

Equity :  Marital Problems

Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214 (Member 4)
Three pages from Applicant’s service record
Certificate of Commendation from Commanding Officer, dated June 22, 2002

PART II - SUMMARY OF SERVICE

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

	Active:   USA	19990310 - 19990427	ELS
	Inactive: USMCR (DEP)	20001128 - 20001210	COG

Period of Service Under Review:

Date of Enlistment:  20001211		Date of Discharge:  20040225

Length of Service (years, months, days):

Active:    03  02  15
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  19

Years Contracted:  4

Education Level:  12				AFQT:  41

Highest Rank:  LCpl				MOS:  0844

Final Enlisted Performance Evaluation Averages (number of marks):*

Proficiency:  4.2 (10)				Conduct:  4.1 (10)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Marine Corps Good Conduct Medal, Combat Action Ribbon, Sea Service Deployment Ribbon, National Defense Service Medal, Presidential Unit Citation, Certificate of Appreciation, Rifle  Qualification Badge (Sharpshooter), Pistol Qualification Badge (Sharpshooter)

*Extracted from supporting documents.

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.3.

Chronological Listing of Significant Service Events:

010406:	NJP for violation of UCMJ, Article 128: In that SNM assaulted a NCO.
	Award:  Forfeiture of $225.00 per month for 1 month, restriction and extra duty for 14 days.  Forfeiture suspended for 6 months.  Not appealed.

010529:	Counseling:  Advised of deficiencies in performance and conduct (Scholastic deficiencies.), necessary corrective actions explained, sources of assistance provided, and discharge warning issued.

010601:	Counseling:  Advised of deficiencies in performance and conduct (Domestic irresponsibility and immature behavior and substantiated moderate physical spouse abuse.), necessary corrective actions explained, sources of assistance provided, and discharge warning issued.

011015:	Counseling:  Advised of deficiencies in performance and conduct (Domestic violence.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

011030:	Family Advocacy Program Manager:  Substantiated spouse abuse against Private First Class O_(Applicant) based upon preponderance of investigative and clinical information.  Abuse was assessed at Level IV.

011120:	Counseling:  Advised of deficiencies in performance and conduct (Domestic violence, irresponsibility and immature behavior.  Specifically, I was the subject of substantiated spouse abuse assessed at level IV, and substantiated child neglect assessed at level II.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020326:	Family Advocacy Program Manager:  The spouse and child cases pertaining to Applicant are closed, resolved.  Applicant completed all educational, treatment and follow-up activities.  Prognosis is good.

030821:	Family Advocacy Program Manager:  The SACC determined this case as substantiated spouse abuse against Lance Corporal O_(Applicant) based upon a preponderance of clinical and investigative information.  Abuse was assessed at Level IV.  Applicant considered a treatment failure due to multiple incidents, the level of treatment interventions given, and no change in behavior.

030828:	Counseling:  Advised of deficiencies in performance and conduct (Assessment from the Family Service Center of a level IV failure.), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.

030925:	Applicant notified of intended recommendation for discharge as under other than honorable conditions by reason of pattern of misconduct.  Applicant informed the least favorable character of service possible was as under other than honorable conditions.

030926:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

030929:	Commanding Officer recommended Applicant’s discharge under other than honorable conditions by reason of pattern of misconduct.  The factual basis for this recommendation was being a level IV treatment failure due to multiple spouse abuse incidents, the level of treatment interventions given, and no change in behavior.

040123:	Applicant waived Administrative Discharge Board

040211:	SJA review determined the case sufficient in law and fact.

040213:	GCMCA, Commander, 2d Marine Division, II Marine Expeditionary Force, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct.
.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040225 by reason of misconduct due to a pattern of misconduct (A and B) with a service characterization of under other than honorable conditions.  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 (C and D).  The Board presumed regularity in the conduct of governmental affairs (E).

The Applicant requests an upgrade of the characterization of his discharge.  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.  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 multiple incidents of domestic violence that were documented by four counselings and two substantiated family advocacy interventions for child neglect and spousal abuse.  The Applicant was finally determined to be a Family Advocacy Treatment Failure because he had received intensive treatment without any change in behavior.  The Applicant was also awarded nonjudicial punishment for violating UCMJ Article 128 by assaulting an NCO.  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 and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant contends that his problems in the Marine Corps can be attributed to his marital problems.  While he may feel that his marital problems were the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

The Applicant stated that he would like to return to the Marine Corps.  The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces.  Reenlistment policy of the Marine Corps is promulgated by the Commandant, United States Marine Corps, Code MMEA, 3280 Russell Road, Quantico, VA 22134.  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.  The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this 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 P1900.16F), effective 01 Sep 2001 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 128 (assault).

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, Para 211, Regularity of Government Affairs.  

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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 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