Author: CAP
Last saved by: Department of the Navy
Company: NCPB

Docket No. MD02-01211

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

ex-PFC, USMC
Docket No. MD02-01211

Applicant’s Request

The application for discharge review, received 020819, 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 030602.  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 OTHER THAN HONORABLE CONDITIONS/Misconduct-Commission of a serious offense, authority: MARCORSEPMAN Par. 6210.6.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  About one week left before I would graduate SOI I got cellulites in my left foot.  I was dropped to a Rehab platoon.  I let a small problem and delay turn into a really big one.  When I was waiting on the bus to be taken to the rehab platoon a Sgt. hit me with a bolt carrier group from my M-16.  I was asked later if I wanted to press charges against him but I did not.  This also contributed to my decision to go UA.  I went UA the day we where leaving for our 96 for thanksgiving.  In January I was arrested with my cousin whom the police had been after for a while.  I admitted to stealing a jacket out of the backseat of an unlocked car.  The day that I was arrested a Marine called me from Washington DC.  After confirming who I was, he told me that some one from DC would come and pick me up in a couple of days.  No one ever came.  After being in jail for about a month or so I received some paper work that I could only assume that it was to ask if I wanted to be discharged.  I really didn't want to be discharged but they sent me the wrong paper work.  Once that I had to send back so by the time I got the right paper work I had been in jail for about two months.  I was afraid that if I went back that I would be thrown into the brig.  After about Three months I was released from jail.  When I got home I called my recruiter to ask if there was anything I could do to go back. Because I wasn't really sure If the paper work was exactly what I thought it was.  My recruiter told me that he had spoke to the officer in charge at S.O.I. and he said I could come back and finish training and go on to Fort Seal like I was supposed to in the beginning.  I then told him about the paper work I received in jail.  My recruiter SSgt H_ sail neither neither he nor the Commander at SOI had any knowledge of any paper work.  I told SSgt H_ that I would return to SOI when he found out what was going on.  In May 94 I went out of town to work.  When I got home I got to court late.  I came straight from work to court but I was late so I was arrested again.  I spent another week in jail.  While I was in jail I received my discharge papers.  I was sentenced to Three years in prison but it was suspended and I got time severed and a year probation.  So for going UA and stealing a 50 dollar jacket (which I know was wrong and I have never stole again) I spent three months in jail and got Discharged from the Marine Corps.  I was 20 yrs old wen all this happened and I am 28 yrs old now.  I still want to be a part of the Marine Corps.  I still want to be a Marine as much as I did when  was 19.  I am asking you to see that I have paid for my mistakes.  I am begging you to see that I have paid long enough.  There has not been a day that has gone by in 8 yrs that I haven't regretted what I did.  I am requesting that my discharge and RE-Code be upgraded so that I can reenlist into the United States Marine Corps.

Documentation

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

Applicant's DD Form 214 (Member 1 and 4)

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		930527 - 930713	COG

Period of Service Under Review:

Date of Enlistment:  930714		Date of Discharge:  940518

Length of Service (years, months, days):

	Active:    00  04  05
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  9 GED		AFQT:  41

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (1)			Conduct:  2.2 (2)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  180

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct-Commission of serious offense (admin discharge board required but waived), authority:  MARCORSEPMAN Par. 6210.6.

Chronological Listing of Significant Service Events:

931119:	Applicant to unauthorized absence.

940130:	Applicant from unauthorized absence (72 days).

940131:	Applicant to unauthorized absence.  Applicant in hands of civil authorities.

940314:	Applicant notified of intended recommendation for discharge under conditions other than honorable by reason of misconduct due to the commission of a serious offense as evidenced by being absent without leave.

940314:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

940325:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by his being absent without leave. 

940512:	GCMCA [Commanding General, Marine Corps Base, Camp Lejeune, NC] directed the Applicant's discharge 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 940518 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 was in an unauthorized absentee status from 931119 until his discharge six months later.  This absence constituted a serious offense.  The Applicant’s age and the fact that the Applicant was incarcerated for much of this time does not mitigate his misconduct.  Relief denied.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  Relief is therefore denied.

The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity 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.  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.  Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 890627 until 950817, Paragraph 6210, Misconduct.

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 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:  A6730/A9453/A9217/A9231/A9445/A9221