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USMC | DRB | 2000_Marine | MD00-00254
Original file (MD00-00254.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD00-00254

Applicant’s Request
The application for discharge review, received 991214, requested that the characterization of service on the discharge be changed to honorable or 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 000817. 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.
PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

 1. My discharge was inequitable because it was based one isolated incident in 36 months of outstanding service, with no other adverse actions. I believe that an other than honorable characterization of discharge is not warranted for the nature of my offense. While I acknowledge and accept responsibility for my mistakes in this case, I did not misappropriate nor conspire to wrongfully remove merchandise from the Marine Corps Exchange. I believe that I was singled out for prosecution due to the lack of efforts to charge the individual (a civilian) who actually stole the merchandise. The only reason I entered into a pre-trail agreement was to avoid going to Special Court Martial and facing confinment. I thought at the time that it would be in my best interest to solve this at the lowest level possible.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Letter from Applicant
Page from Unit Punishment Book
Copies of Memorandum of Pretrial Agreement (3pgs)
Letter of Support from Col F.P.A_____, USMC (Ret)
Letter of Support from Capt P____ B____, USMC
Endorsement Letter from LTCOL A_____ A. G____ JR, USMC (Ret)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                940812 - 950704  COG

 Period of Service Under Review :
Date of Enlistment: 950705               Date of Discharge: 980825

 Length of Service (years, months, days):

         Active: 03 01 20
         Inactive: None

 Age at Entry: 17                          Years Contracted: 4

Education Level: 12                        AFQT: 56

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.6                           Conduct: 4.6

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR

Days of Unauthorized Absence: None

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 :

980720:  NJP for violation of UCMJ, Article 134: Wrongfully solicited LCpl M____ to receive stolen property, of a value of about $1100.00, by asking LCpl M_____ to return the stolen property to the Marine Corps Exchange for a cash refund, violation of UCMJ, Article 134: Wrongfully receive stolen property of a total value of about $1100.00, the property of the Marine Corps Exchange.
         Award: Forfeiture of $500.00 per month for 2 months (suspended for 6 months), restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.
980729:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
980729:          Applicant advised of his rights and having elected to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

980730:  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 your pleas of guilty at Battalion nonjudicial punishment on 980720, as part of enclosure (1) (Memorandum of Pretrial Agreement dtd 880714), you agreed to plead guilty to : Violation of Article 134, UCMJ - In that you wrongfully solicited LCpl M_____ U.S.Marine Corps, to receive and return stolen property of a value of $1100.00 from the Marine Corps Exchange. During Battalion nonjudicial punishment, you pled guilty to the above charges and were awarded reduction to E-2 , restriction and extra duty for two months: Additionally, you agreed to waive your administrative separation board as part of the pretrial agreement and understood that you could be separated with an under other than honorable conditions characterization of service.

980805:  SJA review determined the case sufficient in law and fact.

980812:  GCMCA [Commander, Marine Corps Base, 3250 Catlin Avenue, Suite 133, Quantico, VA 22134-5001 (B-0523)] 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 980825 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).

 In the applicant’s issue 1, the Board found that the applicant did not provide enough documentation to indicate or to show that there exists an error of fact, law, procedure, or discretion associated with his discharge at the time of its issuance, and that his rights were prejudiced thereby. Although the applicant states that this was an “isolated incident”, the Board found that the applicant was found guilty at CO’s NJP for 2 violations of the UCMJ. The applicant was found guilty of wrongfully soliciting another service member to receive stolen property of over $1000 and wrongfully receiving stolen property. The applicant has not provided anything for the Board to presume anything other than regularity. No relief will be granted based on this issue.

There is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the Service. However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (D). Those factors include, but are not limited to, the following: evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct. At this time, the applicant has not provided sufficient documentation of good character and conduct. Therefore no relief will be granted. The applicant is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15-years from the date of discharge.

 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 view DoD Directive 1332.28 and other Decisional Documents by going online at “ afls14.jag.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:

                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                  720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023      


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