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NAVY | DRB | 2004 Marine | MD04-00486
Original file (MD04-00486.rtf) Auto-classification: Denied


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


ex-Sgt, USMC
Docket No. MD04-00486

Applicant’s Request
The application for discharge review was received on 20040105. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge review. The Applicant listed the Disabled American Veterans as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041029. 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. 6210.3.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues, as stated
Applicant’s issues, as stated on the application:

 1. “Was found not guilty by Maryland court off my supposely wrong doing, I’ve never had a domestic violance incident before to put me in a Level 3. My aronidus reduction while on recruiting duty
The complaint of wrong which was never answered or looked into false fitness report
Was discharged with a broken foot (R).”

Additional issues submitted by Applicant’s representative (Disabled American Veterans):

 2. “Dear Chairperson:
After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current Other Than Honorable Conditions Discharge to that of Honorable.
The FSM served on active service from August 12, 1992 to June 19, 2002 at which time he was discharged due to Misconduct.
The FSM contends the current discharge is improper because there is no evidence of a previous domestic violence. The Family Advocacy Program stated, in error, that he was a level three offender, which means a repeat offender and these erroneous statements were never proven. Also the FSM states that he was erroneously reduced in rank and pay grade by the Recruit Commander, who did not have the authority to effect a reduction.
This creates a need for a review of the application of the standard, for the Board to determine that the Applicant’s discharge was improper. The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted. See, SECNAVIST 5420.174 (c), Par. (f) (1).
As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the Applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174C.
We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the Applicant.

 Respectfully,”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from Applicant, undated
Applicant’s DD Form 214 (Member 1 and 4)
 Fourteen pages from Applicant’s service record
Applicant’s trial summary, dated March 4, 2002 (2)
Family Advocacy Program SOP (11 pages)
Page 5-7 from Marine Corps Personal Services Manual
Applicant’s sworn statement, dated June 12, 2002
Complaint of wrongs, dated June 12, 2002 (3 pages)
USMC Fitness Report (2 pages)
Letter from Headquarters United States Marine Corps, dated December 6

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR(J)                920710 - 920811  COG
          Active: USMC              920812 - 951018  HON
                  USMC             951019 - 980807  HON

 Period of Service Under Review :
Date of Enlistment: 980808               Date of Discharge: 020619

 Length of Service (years, months, days):
         Active: 03 10 12
          Inactive: None

 Age at Entry: 27                          Years Contracted: 4
Education Level: 12                        AFQT: 36

 Highest Rank: Sgt                          MOS: 3531
Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.5 (1)                       Conduct: 4.5 (1) (Eval for E-4 and below)
Enlisted performance reports were available to the Board for review.
Military Decorations: None

 Unit/Campaign/Service Awards: RMB, PMB, NUC, NDSM, CoC, LoA
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. 6210.3.
Chronological Listing of Significant Service Events :

980808:  Applicant reenlisted for 4 years.
000926:  Counseled for deficiencies in performance and conduct. [Lack of judgment. Specifically, your poor judgment in maintaining an inappropriate relationship with a woman who is not your wife.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
010220:  NJP for violation of UCMJ, Article 134 (3 specs):
 Specification 1: Engage in an adulterous relationship with someone other than his wife on 000105.
 Specification 2: Engage in an adulterous relationship with someone other than his wife on 001212.
Specification 3: Conduct yourself in such a way as to bring discredit upon the Armed Forces throughout Jan-Dec 2000.
 Violation of UCMJ, Article 90:
 Specification: Disobey the Commanding Officer by engaging in an inappropriate relationship with M_ A_ on 001212.
Violation of UCMJ, Article 92:
 Specification: Violate Depot Order 1100.5 dated 931216, on multiple occasions, by attempting to engage in inappropriate relationships with four different female Officer Candidate Poolees.
Awarded forfeiture of $778.00 per month for 2 months, reduction to E-4. Forfeiture suspended for 6 months. Not appealed.
011024:  Applicant issued a military protection order.

 011025:  Family Advocacy Case Review Committee (CRC) substantiated physical spouse abuse by Corporal at Level 3.
011130:  Applicant advised of CRC recommended actions.
020128:  Counseled for deficiencies in performance and conduct. [On 011004, the Case Review Committee of Henderson Hall substantiated your for a domestic violence incident that occurred 020929. This type of inappropriate conduct will not be tolerated in the U.S.M.C.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
020304:  Applicant appeared as a defendant in District Court of Maryland. Charged with second-degree assault and trespassing on private property. Applicant pled Not Guilty to both charges; verdict was Not Guilty to both charges. Marital privilege invoked after spouse sworn. [Extracted from supporting documents provided by the Applicant.]



020426:  Administrative separation board: The majority of the board recommended separation with a discharge under other than honorable conditions. One member recommended separation with a general discharge. CO, HqBn, HQMC, concurs with the recommendation of the majority. [Extracted from Staff Judge Advocate’s letter dated 020607.]

020607:  SJA review determined the case sufficient in law and fact. Concur with the recommendation of the majority of the board.
020611:  GCMCA, CG, Marine Corps Base, Quantico, VA, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
Parts of Applicant’s discharge package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020619 under other than honorable conditions for misconduct due to a pattern of misconduct (A and B). After a thorough review of available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D). The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (E).

Issue 1. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. Specifically, the Applicant states that he “was found not guilty by Maryland court off my supposedly wrongdoing”. The record indicates that the Applicant was discharged for a pattern of misconduct based upon a nonjudicial punishment for violation of UCMJ Articles 90, 92, and 134 and 2 counselings for deficiencies in performance and conduct. The Applicant states that he was improperly reduced in rank as the result of a nonjudicial punishment proceeding. The record indicates that the Applicant was improperly reduced in rank but that he was restored to the rank of Sergeant prior to being discharged. The Applicant claims that he submitted a “Complaint of Wrongs that was never answered.” The basis of the Complaint of Wrongs was that the verdict in the District Court of Maryland was not guilty and therefore the “allegations” could not form part of the basis for separation”. The record shows that the Applicant’s basis for separation was the nonjudicial punishment and performance counselings. The Applicant states that he was discharged with a broken foot. The record shows that the Applicant was treated for a sprained ankle in April 2002 but there is no documentation to support the Applicants contention that he was discharged with a broken foot. The record contains no evidence of any wrongdoing in the discharge processing. The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. As such, this Board presumed that Applicant’s discharge was regular in all respects. Relief denied.

Issue 2. The Applicant’s representative states that the Applicant’s discharge is improper “because there is no evidence of a previous domestic violence”. This issue was also cited by the Applicant in referring to a “false fitness report” that included references to the number of incidents of domestic violence. The basis for the Applicant’s discharge was discharged for a pattern of misconduct based upon a nonjudicial punishment for violation of UCMJ Articles 90, 92, and 134 and 2 counselings for deficiencies in performance and conduct. 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 documentation to support any claims of post-service accomplishments or any other evidence related to his discharge 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 P1900.16F), effective 01 Sep 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 134, adultery and Article 92, violation of an order.
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.
E. 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.

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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