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USMC | DRB | 1998_Marine | MD98-01293
Original file (MD98-01293.rtf) Auto-classification: Denied


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

ex-CAPT, USMCR
Docket No. MD98-01293

Applicant’s Request
The application for discharge review, received 980922, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a personal appearance hearing discharge review in Tucson, AZ. The applicant did not designate a representative on the DD Form 293. In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel and all personal appearance hearings are conducted in the Washington, D.C. area.

Decision

A personal appearance hearing discharge review was conducted in Washington, D.C. on 000410. 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 HONORABLE CONDITIONS(GENERAL)/DETERMINATION OF SERVICE SECRETARY (REVOCATION OF APPOINTMENT), authority: MARCORSEPMAN Par. 4103.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues
The applicant’s issues were stated in his legal brief.

1. “Command Influence” predicated the discharge and all matters regarding my review of the discharge. There was absolutely no chance for me to obtain a fair review, then, or after my release for active service. I have waited over twelve years for this review in hopes that no one unduly influenced any of the board members.

2. I challenge the entire administrative process of my discharge. I incorporate the issues raised in the original discharge review.

3. I was not legally on active service when I was discharged. The contract binding me to active service was fraudulent.

Documentation

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

Applicant’s Legal Brief dtd 7 April 00
Routing Memo cover sheet: serial 2U191298
Handwritten note by NDRB Staff
OJAG Letter dtd 20 Feb 90
Student Naval Aviator Training Agreement
Applicant’s Airline Transport Pilot Ratings Certificate

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR           800420 - 800813  HON
                  USMCR(J)                 800306 - 800419  COG
                  USMCR(CD)       790129 - 790326  HON
                  USMCR(C)                 781220 – 790228  N/A

 Period of Service Under Review :
Date of Commission: 810814               Date of Discharge: 870803

 Length of Service (years, months, days):

         Active: 05 11 20
         Inactive: None

 Age at Entry: 25                          Years Contracted: 4

Education Level: 16                        AFQT: 94

 Highest Rank: Capt

 Final Officer Performance Evaluation Averages : All Officer performance reports were available to the Board for review

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR

Days of Unauthorized Absence: None

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

UNDER HONORABLE CONDITIONS (GENERAL)/DETERMINATION OF SERVICE SECRETARY (REVOCATION OF APPOINTMENT), authority: MARCORSEPMAN Par. 4103.

 Chronological Listing of Significant Service Events :

861224:  NJP for violation of UCMJ, Article 89: disrespect to a superior commissioned officer; violation of UCMJ, Article 90: disobedience of a lawful order; violation of UCMJ, Article 92: dereliction in performance of duty.
 Awarded Letter of Reprimand. Appealed.
870212: Appeal denied.
861231:  Applicant awarded Punitive Letter of Reprimand.

 870313:  CO, Marine Aircraft Grp 24, MCAS Kaneohe Bay, HI, notified CMC of applicant's NJP and punishment imposed.

870317:  CG, 1 st Marine Amphibious Brigade recommended to CMC that applicant be expeditious separated for misconduct.

870331:  CMC directed a Board of Inquiry for separation for applicant.

870403:  Applicant notified of convening of a Board of Inquiry pursuant to separation.

870415:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to retain all rights.

870529:  Minority report of Board of Officers recommended applicant be discharge and that his service be characterized as Other Than Honorable Condition.

870601:  Majority Report of Board of Officers recommended applicant be discharged and that his service be characterized as General (under honorable conditions).

870622:  Applicant's comments to the SECNAV attached to Board of Inquiry.

 870702:  CMC disapproved applicant's request for early release.

 870720:  CMC recommended to the SECNAV that applicant be discharged with a general under honorable conditions by reason of misconduct.

870721:  SECNAV approved and directed the applicant's discharge with a general under honorable conditions.

921008:  NDRB documentary record review Docket Number MD91-01249 conducted. Determination: discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 870803 under honorable conditions (general) due to determination of Service Secretary (revocation of appointment) (A). The Board presumed regularity in the conduct of governmental affairs (B). 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 NDRB found the applicant’s first issue without merit. On review of the applicant’s discharge the NDRB found no evidence to support the applicant’s issue that “command influence predicted the discharge and all matters regarding” the discharge. Relief is not warranted.

The applicant’s second issue challenges the entire administrative process of the discharge. The applicant incorporated the issues raised in the original discharge review. The applicant’s documentary review (MD91-01249) was available for the NDRB’s consideration. The Board found the issues without merit and the discharge was proper and equitable based on the references. Relief denied.

The applicant’s third issue states that he was not legally on active service when he was discharged and that the contract binding him to active service was fraudulent. The NDRB found this issue to be non-decisional and beyond the scope of this Board. The applicant is directed to petition the BCNR in order to obtain relief due to a possible contractual error.
Pertinent Regulation/Law (at time of discharge)

 A. The Marine Corps Separation and Retirement Manual, (MCO P1900.16C,) Change 2, effective 21 March 1984 until 29 July 1987, Par 4103 - REASONS FOR SEPARATION FOR CAUSE.
B. 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.

C. 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.

D. 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 obtain a copy of DoD Directive 1332.28 by writing to:
                  DA Military Review Boards Agency
                  Management Information and Support Directorate
                  Armed Forces Reading Room
                  Washington, D.C. 20310-1809

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
                  Washington Navy Yard
                  720 Kennon Street SE Rm 309
                  Washington, D.C. 20374-5023     


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