Author: CAP
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Docket No. MD00-00296

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

 ex-LCpl, USMC
Docket No. MD00-00296

Applicant’s Request

The application for discharge review, received 991227, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance hearing discharge review.  The applicant listed the American Legion as his representative on the DD Form 293.  In the acknowledgement letter to the applicant, the applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000831.  After a thorough review of the records, 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 OTHER THAN HONORABLE CONDITIONS/Conduct triable by courts-martial (request for discharge for the good of the service), authority: MARCORSEPMAN Par. 6419.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  (Equity Issue) This former member proffers that mitigating family problems impaired his ability to serve and contributed to his violations of the UCMJ. In light of his otherwise satisfactory service, he opines that separation under honorable conditions is warranted.

2.  (Equity Issue)  This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.

Documentation

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

Copy of DD Form 214 (2 copies)

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		841017 - 880708	HON
	Inactive: USMCR(J)		840406 - 840430	COG
   USMCR(J)		840926 - 841016	COG

Period of Service Under Review:

Date of Enlistment:  880709		Date of Discharge:  921125

Length of Service (years, months, days):

	Active:    04  04  17
	Inactive:  None

Age at Entry:  25			Years Contracted:  4

Education Level:  12			AFQT:  35

Highest Rank:  Cpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.6 (12)		Conduct:  4.2 (12)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, Letter of Appreciation (4), Certificate of Commendation (2), HSM, GCM, KLM, MUC, SSDR (3), SASM

Days of Unauthorized Absence:  158

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

UNDER OTHER THAN HONORABLE CONDITIONS/Conduct triable by courts-martial (request for discharge for the good of the service), authority:  MARCORSEPMAN Par. 6419.

Chronological Listing of Significant Service Events:

880709:	Applicant re-enlisted for 4 years.

890728:	NJP for violation of UCMJ, Article 86 (2 specs):
Specification 1: Fail to go at the prescribed time to field day formation on 1800, 20Jul90.
Specification 2: Fail to go at the prescribed time to a Battalion Commanders Inspection on 0630-1245, 24Jul90.
Violation of UCMJ, Article 92:
Specification: Disobey lawful order from an SNCO, to wit: to report to Booker Rights Class no later than 0715, 26Jul90..
Awarded forfeiture of $238.00 per month for 1 month, restriction and extra duties for 14 days.  Forfeiture suspended for four months.  Not appealed.

900904:	Applicant to unauthorized absence 0700, 4Sep90.

901218:	Applicant returned from unauthorized absence 2332, 18Dec90 (105 days/surrendered).

910220:	Special Court-Martial.
	Charge I: violation of the UCMJ, Article 86 (2 Specifications):
	Specification 1: Unauthorized absence 1330, 24Jul90 to 1330, 28Aug90 (35 days).
	Specification 2: Unauthorized absence 4Sep90 to 18Dec90 (105 days).
	Findings:  to Charge I and specifications thereunder, guilty.  
	Sentence:  Forfeiture of $400 per month for 5 months, confinement for 60 days, hard labor without confinement for 2 months, reduction to PFC.
	CA 910329: Sentence approved and ordered executed except for the part extending to confinement, hard labor without confinement, reduction below the rank of LCpl and forfeiture of pay in excess of $100.00 pay per month for 5 months is suspended for twelve months.

910730:	Counseled for deficiencies in performance and conduct.  [Unsatisfactory conduct and my involvement with both military and civilian authorities.  I understand that I am presently on 2 yrs probation in the state of NC for cashing of worthless checks.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

911119:	Applicant to unauthorized absence 0800, 19Nov91.

911123:	Applicant from unauthorized absence 1130, 23Nov91 (4  days/surrendered).

911217:	Applicant to unauthorized absence, 0730, 17Dec91.

920903:	Applicant from unauthorized absence 1010, 3Sep92 (14 days/apprehended).

920903:	Applicant to confinement.

Separation package missing from service record. 

PART III – RATIONALE FOR DECISION AND PERTINENT 
REGULATION/LAW

Discussion

The applicant was discharged on 921125 under other than honorable conditions 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, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (D and E).

The applicant’s representative submitted the following as issue 1: “(Equity Issue) This former member proffers that mitigating family problems impaired his ability to serve and contributed to his violations of the UCMJ. In light of his otherwise satisfactory service, he opines that separation under honorable conditions is warranted.”  The Board found nothing in the records nor did the applicant submit any supporting documentation that showed that his personal problems were of sufficient magnitude that they could not be resolved through standard military channels or by the applicant's chain of command.  In fact, the Board found that the applicant's age, education, test scores, prior service, promotions and awards were sufficient to qualify him for enlistment.  The Board will not grant relief on the basis of this issue.

The applicant’s representative submitted the following as issue 2: (EQUITY ISSUE) This former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, 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, is considered.  The applicant did not provide any documentation of his post-service.  The applicant should have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service and certification of non-involvement with civil authorities in order for consideration for clemency based on post-service conduct.  At this time the applicant has not provided sufficient documentation of good character and conduct.  Therefore no relief will be granted.  He is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Relief denied.

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 P1900.16D), 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 [ 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

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
INDEX:  A7100/A9307/A9221/A9219