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Docket No. MD03-01358

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

ex-LCpl, USMC
Docket No. MD03-01358

Applicant’s Request

The application for discharge review was received on 20030807.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record 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 20040910.  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/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, as stated

Applicant’s issues, as stated on the application:

1.  “My discharge was inequitable because it was based on one isolated incident in 35 months of service with no other adverse action.  

I have not been in any trouble since have being discharged from the service and have worked in the same trade as a water treatment plant operator since having being discharged.

My discharge that I received has not affected my civilian life in anyway.  However I wish to have my discharge upgraded to Honorable.”

Documentation

The Applicant’s service and medical records could not be located or obtained.  The Applicant was advised of this, but elected to continue with the review.  The only document the Board considered was the DD Form 214, as the Applicant did not provide any additional documentation for consideration.

PART II - SUMMARY OF SERVICE

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

	Active:*
	Inactive:*

Period of Service Under Review:

Date of Enlistment:  891204**	Date of Discharge:  921125**

Length of Service (years, months, days):

	Active:    02  08  22**
	Inactive:*

Age at Entry:  18**			Years Contracted:*

Education Level:*			AFQT:*

Highest Rank:*

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:*				Conduct:*

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Sharpshooter Badge, NDSM, CofC, SWASM (w/1 Star), SSDR

Days of Unauthorized Absence:  ICHA – 62, UA – 28**

*Unknown/cannot be verified
**Extracted from the Applicant’s DD Form 214

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:

920715:	To unauthorized absence. [EXTRACTED BY DD FORM 214.]

920812:	Returned to military control.  [EXTRACTED BY DD FORM 214.]

920812:	Applicant in hands of civil authorities.  [EXTRACTED BY DD FORM 214.]

921012	Returned to military control.  [EXTRACTED BY DD FORM 214.]

921125:	Discharged under other than honorable conditions by reason of conduct triable by courts-martial (request for discharge for the good of the service) under the authority of MARCORSEPMAN Par. 6419.  [EXTRACTED BY DD FORM 214.]

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19921125 under other than honorable conditions in lieu of trial by court-martial (A and B).  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 (C and D).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (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.  Neither the Applicant’s statements nor the evidence of record refute the presumption of regularity concerning the Applicant’s discharge.  The Board found that the Applicant’s discharge was proper and equitable.  Relief denied.
  
Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question.  No such inequity or impropriety 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.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  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.  Evidence of continuing educational pursuits, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that should have been provided to receive consideration for relief, based on post-service conduct.  The Applicant’s evidence of post-service conduct was found not to mitigate his misconduct sufficient to warrant an upgrade to his discharge.  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.  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.

C.  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.

D.  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.

E.  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.  

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.