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USMC | DRB | 2006_Marine | MD0600289
Original file (MD0600289.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-LCpl, USMC
Docket No. MD06-00289

Applicant’s Request
The application for discharge review was received on 20051122 . The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions) . The Applicant requests a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20061019 . Subsequently, the Board reconvened on 20061031 to review additional documents submitted by the Applicant by facsimile on 20061030. 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 by reason of misconduct due to a civilian conviction.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:
“ My discharge was inequitable because it was based on one isolated incident in 8 months of service with no other adverse action .”
Applicant’s Remarks: (Taken from the DD Form 293)
“ For a, long time I’ve felt ashamed and depressed with myself. For allowing a bright opportunity of serving my country get flushed down the to w let. I chosed the military over an academic scholarship because I need discipline. Unfortunately, I didn’t measure up. Nieve, to life many lessons. It is easy to land honorably on the honor row yet difficult to score an ace living life on life’s terms. I’ve battled with depression since discharge. Today I desire to deal with my past so I can move on into my future. I need the medical benefit as an aid in my recovery. I’m into li ving. I’ve completed a Disciple ship program, taught children using my own past mischievous life as an example to avoid and in the Alethia House program today. I want to live and I’m asking for help in my recovery for life. I believe in a G od of this happening. Finally, I thank my military experience for giving me the grace to grow up. Thank you , M_ K_ (Applicant) ”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
 Applicant’s DD Form 215
Additional documentation, submitted by the Applicant by facsimile on 20061030, was also considered:

 Facsimile cover sheet from A_ H_, dtd October 30, 2006
 Character reference letter from Pastor C_ N_, dtd October 25, 2006
Letter from M_ S_, MS, Substance Abuse Counselor, B_ Health Care, certifying participation in Emplo yment and Training Program, dtd October 20, 2006
Character reference letter from A_ H_, Case Manager, B_ Health Care, dtd October 10, 2006
Character reference letter from J_ M_, Vice President, A D_ W_, Inc., undated
Character reference letter from V_ J_ J_, dtd July 27, 2005
 M_ M. K_ (Applicant) “Achievement of Life” list , undated (2 pages)


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19891023 - 19900822       COG
          Active: None

 Period of Service Under Review :
Date of Enlistment: 19900823              Date of Discharge: 19940603

Length of Service (years, months, days):

 Active: 0 3 0 9 11 (does not exclude lost time)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: None
         Confinement:              686 days (in hands of foreign authorities)

Age at Entry: 1 8

Years Contracted: 4

Education Level: 12                                 AFQT: 32

Highest Rank: PFC                                    MOS: 3531

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.0 ( 5 )                       Conduct: 3 .0 ( 5 )

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Rifle Shar pshooter Badge, National Defense Service Medal, Sea Service Deployment Ribbon, Oversea s Service Ribbon .


Character, Narrative Reason, and Authority of Discharge (at time of issuance):
UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct-Civilian Conviction (admin istrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.7.
Chronological Listing of Significant Service Events :

Not dated :       Applicant charged with robbery by Japanese a uthorities .
         [Extracted from Trial Observer memorandum, dtd 92032 6 .]

920325 :  Applicant convicted in the Okinawa Branch of the Naha District C ourt of Japan .
          Sentence: Imprisonment at force d labor for a term not less than three years and not more than five years.
         [Extracted from Trial Observer memo randum, dtd 92032 6 .]

920410 :  Applicant notified of intended recommendation for discharge by reason of misconduct due to a civilian conviction with a characterization of service as under other than honorable conditions. The factual basis for this recommendation is misconduct evidence by civilian conviction. Applicant charged by Japanese authorities with robbery and tried in the Naha District Court. Applicant sentenced to imprisonment at force (d) labor for a term not less than three years and not more than five years. Applicant demonstrated that he has no potential for further military service.

920410:  Commanding Officer, 3d Landing Support Battalion recommended to Commanding General, 3d Force Service Support Group that Applicant be discharged by reason of misconduct due to a civilian conviction with a characterization of service as under other than honorable conditions, in accordance with the provision of paragraph 6210.7 of the reference. The factual basis for this recommendation was this Marine’s misconduct due to a civilian conviction. Lance Corporal K_ (Applicant) was charged by Japanese authorities with robbery and was tried in the Naha District Court. Applicant had been sentenced to imprisonment at force (d) labor for a term not less than three years and not more than five years. By his actions Applicant has demonstrated that he has no potential for further military service.

92041 7 :  Applicant advised of rights and having elected t o consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

920506 :  SJA review determined the case sufficient in law and fact.
920511 :  GCMCA, Commanding General, 3d Force Service Support Group , directed the Applicant's discharge by reason of misconduct, in accordance with paragraph 6210.7 of reference (a), based on a civil conviction with characterization of service as under other than honorable conditions .

920630:  Applicant in the hands of F oreign Authorities.
931116:  Acknowledged understanding of eligibility but not recommended for promotion to L Cpl for the month of Oct 93 Prom period due to being in hands of foreign authorities . Applicant not available for signature.
940517:  Applicant released by Foreign Authorities.
940518:  Applicant transferred to CONUS.
940603:  DD 214: Discharged this date.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19940603 by reason of misconduct due to a civilian conviction (A) with a service characterization of under other than honorable conditions . 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 ( B and C ).

The Applicant states his discharge was based on one isolated incident in “18 months.”
Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Naval service in order to maintain proper order and discipline. The Applicant’s service record is marred by a civilian conviction by Japanese authorities for robbery, thus substantiating the misconduct for which he was separated. The summary of service clearly documents that misconduct due to a civilian conviction was the reason the Applicant was discharged. No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable. Relief denied.

The following is provided for the edification of the Applicant. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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 Naval service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided sufficient post-service supporting documentation for the Board to consider. Relief denied.

The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

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 additional evidence related to this 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 P1900.16D), effective 27 Jun 89 until 17 Aug 95.

B. Secretary of the Navy Instruction 5420.174D of 22 D ecember 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

C . Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .


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 “ http://Boards.law.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:

                  Secretary of the Navy    Council of Review Boards
                   Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                   Washington Navy Yard DC 20374-5023

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