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USMC | DRB | 1999_Marine | MD99-00965
Original file (MD99-00965.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD99-00965

Applicant’s Request
The application for discharge review, received 990708, requested that the characterization of service on the discharge be changed to. 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 000310. 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/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.6.

The NDRB did note an administrative error on the original DD Form 214. Block 28, Narrative Reason for Separation should read: “Commission of a serious offense – all other (board required but waived” vice “Commission of a serious offense – all other (with board)”. Block 26, Separation Code should read: “HKQ1” vice “GKQ1”. The original DD Form 214 should be corrected or reissued as appropriate.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 Prior to the documentary discharge review, the applicant introduced no issues as block 8 on the DD Form 293 is blank.
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)                950518 - 950808  COG

 Period of Service Under Review :
Date of Enlistment: 950809               Date of Discharge: 971222

 Length of Service (years, months, days):

         Active: 02 04 14
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 10                        AFQT: 39

 Highest Rank: LCPL

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.2 (6)                       Conduct: 4.0 (6)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR, Rifle Expert Badge

Days of Unauthorized Absence: 25

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.6.

 Chronological Listing of Significant Service Events :

970918:  Summary Court-Martial.
         Charge I: Violation of the UCMJ, Article 120.
         Specification 1: On or about 19Jan97 committed an offense of carnal knowledge with a child under 16.
         Specification 2: On or about 21Jan97 committed an offense of carnal knowledge with a child under 16.
         Charge II: Violation of the UCMJ, Article 134.
         Specification 1: Did on or about 19Jan97 committed an indecent act with a child under the age of 16 and not with his wife with intent to gratify sexual desires.
         Specification 2: Did on or about 21Jan97 committed an indecent act with a child under the age of 16 and not with his wife with intent to gratify sexual desires.
         Finding: To Charge I, guilty; Specification 1, Charge I, not guilty; Specification 2, Charge I, guilty.
         To Charge II, guilty; Specification 1, Charge II, not guilty; Specification 2, Charge II, guilty.
         Sentence: Forfeiture of $600.00, reduced to E-1, confined for 29 days.
         CA action 971015: Sentence approved and ordered executed.

971118:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by violations of the UCMJ by committing an offense of carnal knowledge, and committing an indecent act with a child under the age of 16.
971118:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

971118:  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 violations of the UCMJ by committing an offense of carnal knowledge, and committing an indecent act with a child under the age of 16.

981209:  SJA reviews case and determines it to be sufficient in law and fact.

971212:  GCMCA, CG, MCB Hawaii, 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 971212 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).

The applicant introduced no decisional issues for consideration by the Board.

 Pertinent Regulation/Law (at time of discharge)

 A. Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 Aug 95 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 [ 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, DC 20374-5023       


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