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USMC | DRB | 2006_Marine | MD0600347
Original file (MD0600347.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. MD06-00347

Applicant ’s Request
The application for discharge review was received on 20051227. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge review. The Applicant designated the American Legion as the representative on the DD Form 293. In a letter, dated April 12, 2006, the Applicant was informed that he was approaching the 15-year point for review by this Board and elected to proceed with a record review.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20061102 . 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 4 to 1 that the character of the discharge shall not change. The discharge shall remain Under Honorable Conditions (General) by reason of misconduct due to the commission of a serious offense.



PART I -

APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant ’s issues, as stated on the application :

“Please review and consider the attached DD Form 149, formal request and supporting documentation. It is my desire t o simply be recognized as a “ Honorably Discharged United States Marine”. This administrative action request will not provide nor change any of my current entitlements or benefits. I feel I was a stellar Marine with the potential of a career. My error in judgment has been more than provided for over the many years since my separation from the Marine Corps. I sincerely request consideration of change of discharge status and humbly seek a favorable decision in this request.”
Representative submitted no issues.

 Applicant’s Remarks: (Taken from the DD Form 293.)
“Please not e . Original submission was provided to the “Board of Naval Records” in Washington DC. The submission was returned with notice of this form and alternate address for submission. Hence this request.

The veteran is seeking review and favorable consideration of being provided upgrade of his current discharge status from the United States Marine Corps.

The veterans official military records indicate a sound and productive Marine with the exception of the incident which occurred outside the preview of the Military and caused embarrassment to the service. The veteran considers his error in judgment grievous and was at the time detrimental to the service. However, his less than favorable separation from the Marine Corps and the accompanied stigma have for the past 14 years clearly been commensurate to any and all standards of punishment.

 It is therefore requested a dedicated review of this request be provided for with all and any benefit of doubt and favorable consideration be made.”
Documentation
In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:
Letter to the Applicant from Board for Correction of Naval Records, dtd November 28, 2005
 Applicant ’s DD Form 149, dtd September 12, 2005
Letter from Applicant to Board for Correction of Naval Records listing documents submitted for consideration, dtd September 15, 2005 (2)
 Applicant ’s letter to the Board for Correction of Naval Records, dtd September 12, 2005 (2 pages)
 Character Reference ltr from G_ J. S_, Sr., Command Sergeant Major, United States Army, Retired, dtd July 4, 2005 (2 pages)
Character Reference ltr from G_ B. P_, Jr., Technical Sergeant, United States Air Force, Retired, dtd April 5, 2005
Character Reference ltr from D_ A. S_, Chief Petty Officer, United States Navy (Retired), dtd June 6, 2005
 Applicant ’s DD Form 214 (Member 4)
Letter to Applicant from Secretary of the Navy Council of Review Boards, and Applicant ’s response, dtd April 12, 2006 and May 6, 2006
 Letter from Applicant , dtd April 30, 2006

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19880701 - 19890627       COG
         Active: None
Period of Service Under Review :
Date of Enlistment: 19890628              Date of Discharge: 19920904

Length of Service (years, months, days):

 Active: 03 02 07 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 9 0 days (IHCA)
         Confinement:              None

Age at Entry: 18
Years Contracted: 4
Education Level: 12                                 AFQT: 77

Highest Rank: LCpl                                  MOS: 0311

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.6 (7 )                                 Conduct: 4.6 ( 7 )
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Armed Forces Expeditionary Medal, National Defense Service Medal, Sea Service Deployment Ribbon, Navy Unit Commendation, Southwest Asia Service Medal (w/1 Star), Ri f le Marksman Badge, Pistol Expert Badge


Character, Narrative Reason, and Authority of Discharge (at time of issuance):
UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct-Commission of a serious offense (all other) with admin discharge board, authority: MARCORSEPMAN Par. 6210.6.
Chronological Listing of Significant Service Events :

91 0829 :  Applicant in hands of civilian authorities.
91112 7 :  Applicant r eleased for civilian confinement.

920508:  Applicant convicted in Superior Court of California, County of San Diego of assault with force likely to produce great bodily injury and hate crime.
         Sentence: Confinement for 365 days, with credit for 243 actual days and 122 credits, a total of 365 days credit, fined $ 500.00 and formal probation for 3 years.

920608 :  Commanding Officer, Headquarters Company, Headquarters and Service Battalion, Marine Corps Recruit Depot, San Diego, CA, recommended to Commanding Officer, Headquarters and Service Battalion the Applicant ’s discharge other than honorable for misconduct by reason of commission of a serious offense and civilian conviction . The factual basis for this recommendation was paragraph 6210.6 and 6210.7. Commanding Officer’s comments: “ Lance Corporal B _(Applicant) was assigned to the USS Independence. On 27 Aug 1991 w hile under way at sea, a Bench Warrant was issued for his arrest . SNM was charged with the following offenses PC 664 - 187A Attempted Murder, PC 211 Robbery , PC 245A Assault with Serious Bodily Harm, PC 422.6A Hate Crime . L/C pl B _ was transported from the USS Ind e pendenc e to the County Jail at Pearl Harbor, Hawai i. On 17 Sept 1991, he wa s turned over to the San D iego County Sheriff and booked for the ab o ve crimes.
         On 27 Nov 1991, L/C pl B_ was released from the San Diego Cou nty J a i l and placed in a restricted status b y the San Diego Superior Court while awaiting trial. SNM has 91 days of lost time. On 8 May 1992, after months of delayed hearings L/Cpl B _ entered a plea agreement with the State of California. SNM pleaded guilty to PC 245A Assault, PC 422.6A Hate Crime. SNM was awarded three years formal probation and ordered confin e d in the county jail for 365 days. Because of the amount of time already served in jail and the restriction status he was in , u pon being released, SNM w a s given full credit of 365 days for time served. He was fined five hundred dollars, and ordered to pay restitution to the victim. On 8 June 1992, the Superior Court of California located in County of San Diego d e termined no restit u tion was in order.
         It is further requested that a more detailed report be obtained other than the enclosure to substantiate the seriousness of these of f enses.
         Lance Corporal B _’s guilty plea has brought discredit upon the Marine Corps and he no longer deserves the honor of being called a ‘ Marine .’ Lance Corporal B _ ’s behavior is a disgrace to the reputation of al l Marines, as evidenced by his total disregard for the laws of our country. H e is of no further value to the Marine Corps a nd should be dis c harged with a charac ter ization of Other Than Honorable. ”
920611:  Applicant notified of intended recommendation for discharge by reason of misconduct. The factual basis for this recommendation was serious disciplinary (Civ or Mil). Applicant informed the least favorable character of service possible was as under other than honorable conditions.

920611:  Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.
92061 9 :  Commanding Officer, Headquarters and Service Battalion , MCRD, San Diego, CA , recommended Applicant ’s discharge under other than honorable conditions by reason of misconduct due to serious disciplinary (Civ or Mil). Commanding Officer’s comments: “Based on SNM’s guilty plea to the felony charges listed in Encl (4), plus the seriousness of the violent incident, recommended L/Cpl B_( Applicant ) be Admin. processed for separation from USMC w/ OTH characterization. ”

920707:  An Administrative Discharge Board, based upon a preponderance of the evidence and by a majority vote, found that the Applicant had committed commission of a serious offense , that such misconduct warranted separation , and recommended discharge with a under honorable conditions (general).

920708:  Clemency petition from Applicant ’s counsel .

 920818:  Executive Officer’s clemency statement.

 920818:  Applicant ’s clemency statement.

 920820 :  SJA review determined the case sufficient in law and fact and recommended discharge be suspended for 6 months.

920824 :  GCMCA, Commanding General, Marine Corps Recruit Depot/Western Recruiting Region, San Diego, CA , approved the recommendation of the Applicant 's discharge with an under honorable conditions (general) by reason of misconduct, specifically commission of a serious offense and direc ted the Commanding Officer, Headquarters and Service Battalion, to issue appropriate discharge orders to effect the separation.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19920904 by reason of misconduct due to the commission of a serious offense (A and B) with a service characterization of under honorable conditions (general). After a thorough review of the records, suppo rting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

The Applicant desires an upgrade based on quality of service. Applicable regulations require that a member’s characterization of service be based upon the member’s total performance of duty and conduct during the current enlistment. However, there are circumstances where conduct or performance of duty reflected by a single adverse incident may form the basis of characterization for a Marine ’s overall service. The incident need not result in formal punishment to be properly used to characterize a Marine ’s service. On 19920508, the Applicant was convicted in Superior Court of California, County of San Diego of assault with force likely to produce great bodily injury and hate crime. Whenever a Marine is involved in misconduct due to commission of a serious offense, commanders shall process the Marine for separation, and normally, the characterization of service shall be under other than honorable conditions. The Applicant was properly notified, processed and discharged with a n U nder H onorable C onditions (General ) by reason of misconduct due to commission of a serious offense. The Applicant’s conduct, which forms the primary basis for determining the character of his service, falls well below that required for an honorable characterization of service. An upgrade to honorable would be inappropriate; therefore relief is denied.

While 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 service, the Board 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. 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. The Applicant submitted three character references for consideration. The Applicant’s efforts need to be more encompassing to include evidence of continuing educational pursuits, verifiable employment records, documented community service, and certification of non-involvement with civil authorities. At this time, there is not sufficient documentation of post service performance and conduct to mitigate the misconduct that resulted in the characterization of discharge. And so, no relief is granted on this basis.

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 post-service accomplishments or any other evidence related to the 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 The Marine Corps Separation and Retirement Manual, ( MCO P1900.16D), effective 27 Jun 89 until 17 Aug 95.

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 128 Assault consummated by battery .
C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

D. 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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