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USMC | DRB | 2000_Marine | MD00-00317
Original file (MD00-00317.rtf) Auto-classification: Denied


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

ex-Cpl, USMC
Docket No. MD00-00317

Applicant’s Request
The application for discharge review, received 000107, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant designated the American Legion as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000824. 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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.6.

The NDRB did note an administrative error on the original DD Form 214. Block 18, Remarks should read: “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 881115 UNTIL 950222”. The original DD Form 214 should be corrected or reissued as appropriate.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1. (Equity Issue) His violations of the UCMJ notwithstanding, this former member opines that his otherwise lengthy creditable service record is sufficient to warrant a fully honorable discharge.

2. (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.

 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              881115 - 950222  HON
         Inactive: USMCR(J)                880115 - 881114  COG

 Period of Service Under Review :
Date of Enlistment: 950223               Date of Discharge: 981218

 Length of Service (years, months, days):

         Active: 03 09 26
         Inactive: None

 Age at Entry: 24                          Years Contracted: 4

 Education Level: 12                        AFQT: UNKNOWN

 Highest Rank: Sgt

 Final Enlisted Performance Evaluation Averages: All enlisted performance reports were available to the Board for review.

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, GCM (3), MUC (2), NAM (3), SSDR (2), JMU, MM (3), Certificate of Commendation (2), Letter of Appreciation (10)

 Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.6.

 Chronological Listing of Significant Service Events :

980708:  Applicant waives unconditionally his right to an administrative discharge board and the Convening Authority guarantees that the characterization of discharge will be no less than general (under honorable conditions).
980724:  NJP for violation of UCMJ, Article 134 (3 specs):
 Specification 1: Communicated certain indecent language between 980330 to 980509.
Specification 2: Communicated with Cpl certain indecent language between 980330 to 980509.
Specification 3: Communicated certain indecent language between 980330 to 980409.
Awarded forfeiture of $700.00 per month for 2 months, restriction and extra duties for 45 days, reduction to Cpl. Forfeiture for 1 month suspended for 6 months. Not appealed.
980724:  Applicant notified of intended recommendation for discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.
980724:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights.

980724:  Commanding Officer, Headquarters Battalion, Marine Corps Logistics Base, Barstow recommended discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense. The factual basis for this recommendation was your recent NJP and the pretrial agreement signed on 8Jul98.

980731:  SJA review determined the case sufficient in law and fact.

981207:  Commanding Officer, Marine Corps Logistics Base directed discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense. The factual basis for this recommendation was your recent NJP and the pretrial agreement signed on 8Jul98.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 981218 general (under 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 seriousness of the applicant’s NJP is not sufficient to warrant an upgrade to HONORABLE. The applicant’s service was taken into account when the applicant received a GENERAL discharge vice an OTHER THAN HONORABLE discharge. The applicant was found guilty and admitted to 3 separate specifications of communicating indecent language. The applicant signed a pretrial agreement admitting guilt and accepting a general discharge. The Board finds the discharge proper and equitable and will not grant relief based on this issue.

In response to the applicant’s issue 2, 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 any 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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