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

 ex-PFC, USMC
Docket No. MD00-00192

Applicant’s Request

The application for discharge review, received 991117, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000831.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: UNDER CONDITIONS OTHER THAN HONORABLE/Separation in lieu of trial by court-martial, authority: MARCORSEPMAN Par. 6419.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  At the time I was only 17 years of age and was physically and verbally abused on a daily basis because of my lack of running ability even though I earned a first class rating on my P.F.T.'s every time.  This continued on through I.T.S. where I was singled out and got "thrashed".  Even after being put on light duty because of severe shin splints and bruised toes I was constantly harassed in the F.M.F. by a Staff Sergeant Z_ about my running time.  I requested transfers but was always denied.  So I decided I couldn't take no more and left.  When I returned I met a sergeant on a bus and he told me to leave three times and I would be discharged.  Seeing no other way I did so.  Which is what I believe the corps wanted me to do.

Documentation

In addition to the service record, the following additional documentation, submitted by the applicant, was considered:

Copy of Medical Revised Duty Status dated January 6, 1996
Copy of newspaper article (2 copies)
Copy of one page of enlistment contract dated July 1, 1985
Copy of amounts reported to IRS from Cincinnati Service Center dated December 28, 1987
Copy of certificate dated 28 March 1985

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Active:   None
	Inactive: USMCR(J)		840717 - 850630	COG

Period of Service Under Review:

Date of Enlistment:  850701		Date of Discharge:  861205

Length of Service (years, months, days):

	Active:    01  05  05
	Inactive:  None

Age at Entry:  17			Years Contracted:  4

Education Level:  12			AFQT:  59

Highest Rank:  LCPL

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.7 (2)			Conduct:  3.1 (3)

Military Decorations:  None

Unit/Campaign/Service Awards:  None 

Days of Unauthorized Absence:  285

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER CONDITIONS OTHER THAN HONORABLE/Separation in lieu of trial by court-martial, authority: MARCORSEPMAN Par. 6419.

Chronological Listing of Significant Service Events:

860109:	Applicant to unauthorized absence.

860311:	Applicant from unauthorized absence.

860317:	Applicant to unauthorized absence.

860319:	Applicant issued straggler's orders to report to military police/staff duty/officer-in-charge/Commanding Officer by 2400, 19Mar86.  Applicant certified receiving original of straggler's orders at 1100, 19Mar86.

861027:	Applicant from deserter status awaiting separation.

861107:	Applicant, having consulted with counsel certified under UCMJ Art 27b, requested discharge for the good of the service to escape trial by court- martial.  In the request the applicant noted that his counsel had fully explained the elements of the offenses for which he was charged and that he understood the elements of the offenses.  He further certified a complete understanding of the negative consequences of his actions and that characterization of service would be under other honorable conditions.  The applicant admitted guilt to the following violations of the UCMJ, Article 86: Unauthorized absence from 0730, 17Mar86 until 0200, 27Oct86 (223 days/apprehended).

861124:	SJA review determined the case sufficient in law and fact.

861126:	GCMCA [Commanding General, 1st Marine Division (Rein), FMF, Camp Pendleton, CA] determined that applicant had no potential for further service, that separation in lieu of trial by court-martial was in the best interest of the service, and directed discharge under conditions other than honorable by reason of conduct triable by courts-martial.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 861205 under conditions other than honorable in lieu of trial by court-martial (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).

In the applicant’s issue 1, while the applicant introduced no decisional issues for consideration by the Board, the Board found no evidence the applicant had been harassed or denied appropriate medical treatment.  His health record indicates three visits to health clinics for treatment for sore feet, and appropriate diagnostics revealed no medical issues.  However, the applicant was treated symptomatically and placed on limited duty during the episodes of complaint of feet pain.  Further, during the period of time the applicant cites harassment, his conduct and proficiency markings were superior: 4.7/4.8 on a scale of 0 to 5, indicating his supervisors were very satisfied with his performance and conduct.

The Board further notes the applicant’s following statements made, signed and witnessed 861105 at Camp Pendleton, California:
“I went U.A. because military life was difficult for me to handle mentally and physically.  I didn’t feel right being in knowing I couldn’t excel.” 
“I do not want to go back to duty because I have adjusted to civilian life well and I know that would be best for me and my family.” 

The following is provided for the applicant’s edification.  The applicant must be aware that 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.  Normally, to permit relief, an error or injustice must  be found to have existed during the period of enlistment in question.  Conduct and proficiency markings of 4.7 and 4.8 indicate both the potential and the capability to excel in a military environment.  Adjustment to civilian life while in a deserter status is not justification for clemency by the Board.   Therefore no relief will be granted.  The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is highly recommended.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16C), Change 2, effective 15 May 84 until 26 Jun 89.

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 [ e.g., Article 86, unauthorized absence for more than 30 days].

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