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USMC | DRB | 1999_Marine | MD99-00507
Original file (MD99-00507.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD99-00507

Applicant’s Request
The application for discharge review, received 990225, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The applicant requested a documentary record discharge review. The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000110. 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 OTHER THAN HONORABLE CONDITIONS/INVOL DIS (BOARD WAIVED) (MISCONDUCT), authority: MARCORSEPMAN Par. 6210.7


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. My undesirable discharge was inequitable due to the fact that I had served the corps for a total of 3 years and 28 days, in which the majority of my time I had been recommended for several promotion boards based upon my performance as a marine. Upon rushing into marriage with a woman whom I thought had my child, I got into trouble and based upon an isolated incident I was discharged due to my civilian conviction; after serving 3 months in jail I was discharged. Now that I am now trying to get back into the military, but in order for me to accomplish this goal I need to upgrade this discharge to change my re-enlistment code to an acceptable one so that I can once again walk with pride. I feel everyone is young and some make foolish choices, but mine costed me a childhood dream; so I plea to the board to be sympathetic in this issue.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                910708 - 920705  COG

 Period of Service Under Review :
Date of Enlistment: 920706               Date of Discharge: 950803

 Length of Service (years, months, days):

         Active: 03 00 28
         Inactive: None

 Age at Entry: 18                          Years Contracted: 6

Education Level: 12                        AFQT: 53

 Highest Rank: LCPL

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.5 (7)                       Conduct: 4.4 (7)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR, Rifle Marksman Badge (2 nd )

Days of Unauthorized Absence: 84

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

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

 Chronological Listing of Significant Service Events :

950111:  NJP for violation of UCMJ, Article 92: Violate a protective military order issued by the Commanding Officer, MCAF Quantico dated 16 Dec 94 restricting him from having contact with his wife, by approaching her in the parking lot and remaining with her there approximately 10 minutes.
 Awarded Restriction and extra duties for 45 days. Not appealed.
950119:  Counseled for deficiencies in performance and conduct. [Unacceptable behavior by assaulting your wife and dependent daughter and disobeying your military protective order to remain away from your wife and daughter.] Applicant advised that incident could result in an administrative separation [under conditions other than honorable].

950201:  NJP for violation of UCMJ, Article 90: Disobeyed the CO CAF by violating his restriction order by leaving MCAF Quantico without permission, violation of UCMJ, Article 92: disobeyed restriction order signed on 950109 by leaving the confines of MCB Quantico VA without permission, violation of UCMJ, Article 134: Wrongfully and unlawfully make under lawful affirmation a false statement.
 Awarded Correctional Custody for 30 days, reduction to E-2. Not appealed.
950313:  Counseled for deficiencies in performance and conduct. [Specifically disobeying a lawful order by breaking restriction and leaving the confines of HQSQDN, MCAF QUANTICO VA.] Applicant advised that incident could result in an administrative separation [under conditions other than honorable].

950320:  Applicant convicted in the 31 st Judicial District Juvenile and Domestic Relation Court. Charge with Assault and Batter.
         Sentence: 12 months in the Prince William County Adult Detention Center with 6 months suspended conditioned upon his successful completion of probation, to be placed on active probation for 1 year with the special conditions of probation that he enter and complete Anger Management Program as may be required by probation, cooperative with any recommendation made by the Prince William County Department of Social Services, and attend a parenting class as may be required by probation.

950531:  Applicant notified of intended recommendation for discharge under condition other than honorable by reason of misconduct due to civilian conviction as evidenced by your conviction in the 31 st Judicial District Juvenile and Domestic Relations Court of the Commonwealth of Virginia, of Assault and Battery.
950531:          Applicant advised of his 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.
        
950603:  Commanding officer recommended discharge under condition other than honorable by reason of misconduct due a civilian conviction. The factual basis for this recommendation was your conviction in the 31 st Judicial District Juvenile and Domestic Relations Court of the Commonwealth of Virginia, of Assault and Battery.

950720:  SJA review determined the case sufficient in law and fact.

950720:  GCMCA [Commander, Marine Corps Air Bases, Eastern Area] 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 950803 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).

In the applicant’s issue, the Board determined this issue is without merit. The NDRB is under no obligation to upgrade an applicant’s discharge to allow him the opportunity to re-enlist into any branch of the armed services. The NDRB must look at the equity and propriety of the discharge to determine if an error occurred which would warrant recharacterization of the discharge. No such error occurred.

The Board concurs with the applicant’s issue that he had a successful career in the Marine Corps until the point at which he was convicted in civil court. However, the Board determined that his service with the Marine Corps during his 3 months incarceration was unsatisfactory. Therefore, relief denied.

 The following is provided for the applicant’s edification. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (E). The applicant must be aware that 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 the civilian life subsequent to leaving the service. Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, may be considered by the NDRB. The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at personal appearance hearing is highly recommended.

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 [ e.g., Article 86, unauthorized absence for more than 30 days].
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 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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