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NAVY | DRB | 2004 Marine | MD04-00093
Original file (MD04-00093.rtf) Auto-classification: Denied


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

ex-SSgt, USMC
Docket No. MD04-00093

Applicant’s Request
The application for discharge review was received on 20031017. The Applicant requests the reason for the discharge be changed to “Comp Auth w/Out Board.” The Applicant requests a documentary record 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 20040715. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. The Board’s vote was unanimous that the narrative reason of the discharge shall not change. The discharge shall remain: UNDER HONORABLE CONDITIONS (GENERAL)/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.6.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


 Issues, as stated

 Applicant’s issues, as stated on the application:

1. “My original DD214 had the above narrative reason and code of LFG1, which was subsequently changed by DD215 to misconduct and code HQK1. This was not the separation I agreed to nor does it reflect my 14 years of spotless service, including 4 Good Conduct Medals. I further feel that subsequent changing of discharge reason and code was somewhat underhanded and should be corrected. Thus, I request that the original reason and code (LFG1) be reinstated.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 and DD Form 215
Letter from CWO J.W. W_
Letter from Applicant

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              860425 – 891109  HON
 USMC             891110 – 940131  HON
USMC             940201 - 990503  HON
          Inactive: USMCR(J)                860409 - 860424  COG

 Period of Service Under Review :
Date of Enlistment: 990504               Date of Discharge: 020129

 Length of Service (years, months, days):

         Active: 02 08 26
         Inactive: None

 Age at Entry: 31                          Years Contracted: 4

Education Level: 12                        AFQT: 33

 Highest Rank: SSgt

 Final Enlisted Performance Evaluation Averages (number of marks):

 All Fitness Reports were available for review
Military Decorations: None

 Unit/Campaign/Service Awards: NMCAM, SASM, KLM, NDSM, GCM (4), CAR, SSDR (7), NUC, CC (3), MM (7), LoA

 Days of Unauthorized Absence: None

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

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

 Chronological Listing of Significant Service Events :

010907:  Counseled for deficiencies in performance and conduct. [Kissing a subordinate PFC in your chain of command.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
010911:  NJP for violation of UCMJ, Article 92: Wrongfully kissed a female Marine who was in student status at MTIC, MARCORDET, FLW, MO.
 Awarded forfeiture of $1162.00 per month for 2 months, restriction for 60 days. Not appealed.
011011:  Applicant notified of intended recommendation for discharge under honorable conditions (general) by reason of misconduct due to the commission of a serious offense as evidenced by NJP for fraternization.
         Charges were initially preferred to trial by special court-martial but Applicant agreed to enter a pre-trial agreement. Applicant pleaded guilty at NJP and cooperated with the government in the prosecution of other instructor misconduct.
011016:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to make a statement and obtain copies of the documents supporting the proposed separation.
011019:  Commanding Officer recommended discharge under honorable conditions (general) by reason of misconduct due to the commission of a serious offense.

011120:  SJA review determined the case sufficient in law and fact.

020108:  GCMCA [CG, Training Command] directed the Applicant's discharge under honorable conditions (general) 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 20020129 under honorable conditions (general) 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).

Issue 1. The Applicant’s characterization of service is determined by the separation authority, not the Applicant’s Commanding Officer. The Applicant committed a serious offense. The separation authority directed the Applicant’s discharge due to the commission of a serious offense and assigned a separation code of “HKQ1.” An erroneous DD214 was issued and later properly corrected by the issuing of a DD215 that reflected the reason for discharge and separation code as directed by the separation authority. No other narrative reason more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation. The Board found no authorized basis to discharge the Applicant under secretarial authority with the corresponding separation code of “LFG1,” as reflected on the Applicant’s original DD Form 214. Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country for the enlistment under review. The discharge was proper and equitable. Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity is evident during the Applicant’s enlistment. Additionally, 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 civilian life, subsequent to leaving the service. Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his discharge. Representation at a personal appearance hearing is recommended but not required.














Pertinent Regulation/Law (at time of discharge)

 A. Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 01 September 2001 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 92, disobey a lawful order.
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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