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NAVY | DRB | 2004 Marine | MD04-00297
Original file (MD04-00297.rtf) Auto-classification: Denied


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


ex-LCpl, USMC
Docket No. MD04-00297

Applicant’s Request
The application for discharge review was received on 20031201. The Applicant requested the characterization of service received at the time of discharge be changed to honorable. The Applicant requested 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 20040812. 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:

 Issue 1: “My discharge was inequitable because it was based on one isolated incident in 95 months of service with no other adverse action. ”
Documentation
No additional documentation was submitted by the Applicant. Applicant marked the box "WILL NOT BE SUBMITTED. PLEASE COMPLETE REVIEW BASED ON AVAILABLE SERVICE RECORDS."

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              930601 - 981020  HON
          Inactive: USMCR (J)               920611 - 930531  COG
Period of Service Under Review :
Date of Enlistment: 981021               Date of Discharge: 010430

 Length of Service (years, months, days):
         Active: 02 06 09
          Inactive: None
Age at Entry: 24                          Years Contracted: 4

Education Level: 12                        AFQT: 57

 Highest Rank: Sgt
Final Enlisted Performance Evaluation Averages : The Applicant’s fitness reports were available to the Board for review.
Military Decorations: CertCom (x 3), MertM, NMCAM (w/1 star), GCM (w/1 star)

 Unit/Campaign/Service Awards: SSDR, NDSM, NUC, MUC
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 :

981021:  Applicant reenlisted in the Marine Corps for four years.
001025:  Charged with five counts felony rape in the Superior Court of California. (The Applicant plead guilty to the charges and was found guilty.)


010111:  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 the Applicant’s conviction by Superior Court of California, County of San Diego for assault with the intent to commit rape.
010111:  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.
010117:  Commanding Officer, Marine Aircraft Group 16 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 the Applicant’s “conviction by Superior Court of California, County of San Diego for assault with the intent to commit rape.”

010324:  Applicant’s letter to the Commanding General acknowledging his understanding of his right to wave a hearing before an administrative board.

 010326:  SJA review determined the case sufficient in law and fact.
010327:  GCMCA [Commanding General, 3d Marine Aircraft Wing] 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 20010430 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 isolated incident in “95 months of service with no other adverse action. ” There is credible evidence in the record the Applicant was convicted of felony rape in the Superior Court of California. Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question. T he Board discovered no impropriety or inequity; thereby, considering the Applicant’s discharge to be proper and equitable . A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a member of the U. S. Marine Corps. The record is devoid of any evidence the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. The Applicant’s service record is marred by a felony conviction in civil court . The summary of service clearly reflects the Applicant’s disobedience of the orders and directives that regulate good order and discipline, and demonstrated he was unsuitable for further service. An upgrade to honorable would be inappropriate. Relief denied.
  
The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge. The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time. 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 31 January 1997 until 31 August 2001).

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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