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NAVY | DRB | 2004 Marine | MD04-00169
Original file (MD04-00169.rtf) Auto-classification: Denied


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

LCpl, USMC
Docket No. MD04-00169

Applicant’s Request
The application for discharge review was received on 20031029. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record review. The Applicant did not list a representative on his DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040628. 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 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, as stated

Applicant’s issues, as stated on the application:

“1. I believe this discharge status was inequitable because it is based on one incident in an otherwise clean record of service. While I do not deny or dispute the allegations, when this situation came to light I had not previously dealt with the law in this way and was unsure of what to do. My first reaction was panic, and that distracted my thoughts so I went to the civil authorities rather than to the base. In fact, I was in such a state of panic that I didn’t even call my unit leaders. At the time this came to light, my unit leaders were familiar with permanent personnel and were understanding that situations sometimes come up. They were very willing to work through a situation to help a Marine stay a Marine. But my trial was severely extended by the court (arraigned 20010111, sentenced 20010706), and even though I knew I only faced a few months in Jail for my offense, when I asked about it, I was repeatedly threatened with 3 years in prison – the full sentence! During this time, a new command came from a school unit with a no-tolerance policy and my name was near the top of the list.

2. At the time of my situation, I was pending for a medical discharge and still suffer from my injury. Once again, I am not trying to downplay what I did. It was wrong and I paid for it. I simply ask that this be re-instated so I can receive help for it as I age and my injury gets worse (I have a bad knee, characterized by level IV arthritis on both sides. While active duty it was operated on, but it got worse so I could no longer perform a PFT.)

3. In short, my desire is to use this to clear my record of one bad decision that I still pay for long after my civilian punishment is over, and to become a productive member of society with my training, Esprit de Corps, and the commitment I swore to as a Marine that will continue with me until my time here is over. Thank you for considering my case.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None submitted.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None                       HON
         Inactive: USMCR (J)               981214 - 990124  COG

 Period of Service Under Review :
Date of Enlistment: 990125               Date of Discharge: 020110

 Length of Service (years, months, days):

         Active: 02 11 16 (Lost time not included.)
         Inactive: None

 Age at Entry: 23                          Years Contracted: 4

Education Level: 13                        AFQT: 86

 Highest Rank: Cpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (8)                       Conduct: 4.2 (8)

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 010108 – 010110 (3)

 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 :

981210:  Does not meet established physical standards for enlistment due to 1995 basketball injury to knee. Waiver was requested and granted.
010706:  Sentenced in the Superior Court of California of San Bernardino for conviction of a felony (Lewd or Lascivious Acts w/Child).
011024:  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 being arrested by the San Bernardino County Sheriff Department for engaging in lewd and lascivious acts with a child.
011024:  Applicant advised of 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.

011031:  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 being found guilty at the San Bernardino County Courthouse for lewd and lascivious acts with a child.

011210:  SJA review determined the case sufficient in law and fact.

011214:  GCMCA [Commanding General, Marine Air Ground Task force Training Command] 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 20021010 under other than honorable conditions for misconduct due to the commission of a serious offense (A). The Board presumed regularity in the conduct of governmental affairs (B). 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 (C and D).

Issue 1: The Applicant states his discharge was “based on one incident in an otherwise clean record of service.” The military does not view the Applicant’s offense as minor infraction. In fact, his actions were viewed as “corrosive to good order and discipline,” thereby substantiating the misconduct for which he was separated. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. In the Applicant’s case, the Board discovered no impropriety or inequity and considers his discharge proper and equitable. When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as honorable. An Under Other Than Honorable Conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. T he Applicant’s service was marred by a civil conviction for lewd and lascivious acts with a child. The Applicant’s conduct, which forms the primary basis for determining the character of his service, falls far short of the conduct expected of a Marine. An upgrade of his service characterization would be inappropriate. Relief denied.

Issue 2 & 3: The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities or acquiring medical benefits as requested in these issues. The record shows that the Applicant was granted a waiver for his knee injuries suffered in 1995 while playing basketball in order to enlist. Additionally, for the Applicant’s edification, disciplinary or misconduct administrative actions supersede disability separations and the medical process is terminated. The Board’s regulations limit its review to a determination on the propriety and equity of the discharge. There was no impropriety or inequity in the Applicant’s case. The discharge was proper and equitable. In fairness to those many Marines who have served with honor, it would be in appropriate to upgrade the Applicant’s discharge.

There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service. However, the NDRB is authorized to consider post-service factors in the recharacterization of a discharge. 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. Verifiable proof of post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities, and credible evidence of a substance-free lifestyle are examples of verifiable documents that may be provided to receive consideration for relief based on post-service conduct. At this time, the Applicant has not provided sufficient documentation for the Board to consider an upgrade.
 
The Applicant is reminded that she remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of her 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. 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.

C. 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.

D. 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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