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NAVY | DRB | 2004 Marine | MD04-00947
Original file (MD04-00947.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD04-00947

Applicant’s Request
The application for discharge review was received on 20040517. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. The Applicant requests a personal appearance hearing in Washington, D.C. The Applicant was advised that his case would first receive a documentary review prior to any personal appearance hearing. The Applicant listed the American Legion as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041022. 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.
The NDRB did note administrative error(s) on the original DD Form 214. Block 18, Remarks, should read: "CONTINUOUS HONORABLE ACTIVE DUTY FROM 19970409 UNTIL 20010424." The Commandant, Headquarters USMC, Quantico, VA, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION


 Issues, as stated

Applicant’s issues, as stated on the application:

1. “My discharge was improper because it was based on my third domestic violence incident. There are extreme sircumstances behind this incident. I was in the process of rectifying my domestic issues. Please see my attached package explaining all of the situations leading to my discharge.
Based on MCO P1900.16 I should have been afforded the opportunity to receive treatment for my domestic issues.”

Additional issues submitted by Applicant’s counsel/representative (AMERICAN LEGION):

 2. “Equity Issue: Based on our review of evidentiary record and on behalf of this former member, we request that the Board consider provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.


In accordance with 32 C.F.R., section 724.166 and SECNAVINST 5420.174C, enclosure (1), paragraph 1.16, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue and following statement in supplement to this Applicant’s petition.

Review of the service record reveals that this former member maintained satisfactory PRO/CON markings of 4.5/4.4 and earned the NDSM, GCM, SSDR, LOA, REB. He received 6 adverse counseling entries as well as civil and drug charges primarily related to ongoing domestic violence. As a result, he was processed for an UOTHC discharge but due the unique circumstances of his marital problems and the outstanding recommendations by his immediate chain of command the discharge was suspended on 021126 for 12 months provided he have no contact with his estranged wife and placed the custody of his daughter with someone other than her. He did not honor the agreement and the suspension was vacated 030731. Following due process review, he was discharged Under Other Than Honorable Conditions due to misconduct as authorized by MARCORSEPMAN, Par. 6210.5, 6210.6.

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because there were extreme mitigating circumstances that lead to his misconduct. He has submitted copies of his SRB, tabbed and highlighted, in support of his contentions for consideration.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised. To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 U.S.C., section 1553, and set forth in 32 C.F.R., part 724 and SECNAVINST 5420.174C, enclosure (1).

This case is now respectfully submitted for deliberation and disposition .”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Statement to BCNR
Forty-three pages from Applicant’s service record
Letter from defense attorney for Applicant
Eighteen pages of separation and divorce legal action
Email from SgtMaj D_
Extract from MCO P1900.16E, pp. 6-7 – 6-110
Extract from MCO P1700.24B, pp. 1-3, 5-3 – 5-32, iii, v
Eighteen pages from domestic incident reports

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              970409 – 010424  HON
         Inactive: USMCR(J)                970307 - 970408  COG

 Period of Service Under Review :
Date of Enlistment: 010425               Date of Discharge: 030820

 Length of Service (years, months, days):

         Active: 02 03 26
         Inactive: None

 Age at Entry: 23                          Years Contracted: 4

Education Level: 12                        AFQT: 62
Highest Rank: Cpl                          MOS: 3051

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3                           Conduct: 4.2 (Average marks from SJA memo, dated 030730)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, GCM, SSDR, LA

 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 :

010809:  Counseled for deficiencies in performance and conduct. [UA from section formation.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020408:  SNM not recommended for promotion for 24 months due to civil action concerning drug association.

020417:  Case Review Committee substantiated Spouse Abuse, Level III against Applicant.
020620:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and due to the commission of a serious offense as evidenced by drug involvement and domestic violence incidents.
020626:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
020625:  Commanding Officer recommended discharge under other than honorable conditions, suspended for twelve months, by reason of misconduct due to the commission of a serious offense. The factual basis for this recommendation was the Applicant’s use of illegal drugs and domestic violence incidents. Involvement with illegal drugs was identified when he entered a deferred prosecution agreement with the district attorney, placing him on probation for 24 months. Applicant indicated the incident was the result of his wife’s involvement with illegal drugs. I believe that he was not directly involved with nor did he condone his wife’s actions and that he was the victim of her activities. Applicant has also been the subject of two domestic violence incidents, both of which were dual-spouse. He has followed the prescribed treatment schedule recommended by Family Advocacy. He has also come to the realization that the best thing for him to do is to terminate his marriage. Applicant is a knowledgeable, hard working, career minded Marine worthy of a second chance to salvage what he can of his career.

020710:  Applicant requested suspension of his pending administrative separation and waived right to an administrative discharge board contingent upon the requested suspension.

020729:  CG, 2d FSSG denied request for suspended discharge.

020904:  Case Review Committee substantiated Spouse Abuse, Level III against Applicant.

021113:  Applicant requested suspension of his pending administrative separation and waived right to an administrative discharge board contingent upon the requested suspension.

021115:  Commanding Officer recommended suspended discharge. Applicant is an asset to the command and the Marine Corps.

021217:  GCMCA [CG, 2d FSSG] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse and that the discharge be suspended for twelve months.

030426:  PMO responded to domestic assault at Applicant’s quarters.

030602:  Applicant notified of intent to vacate suspended discharge under other than honorable conditions due to continued domestic violence incidents and treatment failure with the Family Counseling Center.

Undated:         Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to make a statement.

030610:  Commanding Officer recommended that the Applicant’s suspended discharge be vacated due to continued domestic violence incidents. Applicant blatantly lied to everyone in his chain of command.

030612:  Case Review Committee substantiated Spouse Abuse and Child Neglect, Level III against Applicant and his wife. Applicant determined to be a treatment failure due to two prior cases within one year, previous cases closed as unresolved with poor prognosis due to lack of follow through on recommendations, current incident involving children and alcohol, and no change in behavior.
030630:  Applicant’s statement on vacation of suspended discharge.

 030730:  SJA review determined the case sufficient in law and fact.
030731:  CG, 2d FSSG vacated the suspended discharge and directed the Applicant's separation 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 20030820 under other than 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).

 Issue 1. A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a Marine. The Applicant’s service was marred by substantiated cases of domestic violence, which are considered serious offenses under the UCMJ. The documentation and statements provided by the Applicant do not refute the presumption that the Applicant committed the offenses that were substantiated by his Case Review Committee and that he was properly afforded all rights concerning recommended treatment for his domestic violence incidents. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. In the Applicant’s case the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge was proper and equitable. Relief denied.
Issue 2. The Applicant’s discharge characterization accurately reflects his service to his country for the enlistment under review. Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question. No such inequity or impropriety 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. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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. Verifiable proof of any 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, 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 documentation that may be provided to receive consideration for relief, based on post-service conduct. The Applicant’s evidence of post-service conduct was found not to mitigate his misconduct sufficient to warrant an upgrade to his discharge. 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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