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

ex-Pvt, USMC
Docket No. MD04-00603

Applicant’s Request

The application for discharge review was received on 20040225.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a documentary record 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 20050210.  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/IN LIEU OF TRIAL BY COURT-MARTIAL, authority: MARCORSEPMAN Par. 6419.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1.  (Issue) Request for an upgrade in discharge to that of General under Honorable conditions.

1.  (Reason) I do not deny the fact that 1 went about requesting separation from the Marine Corps in an inappropriate manner.  Although, I do believe the discharge to be improper as my prior service record shows that I had absolutely no prior disciplinary issues throughout my service and that I did in fact enjoy my time in the Marine Corps.  I also believed at the time that my reasons for requesting discharge were sound.

2.  (Issue) Request for an upgrade in separation and reenlistment codes for the purpose of reentering military service.

2.  (Reason) As I mentioned in my letter to the Board, I have grown considerably as a person since my time in the Marine Corps.  I have had to work hard to restore my good name not only in the eyes of those I live and work with on a daily basis but in my eyes as well.  I believe that I have found my true calling professionally in pre hospital emergency care and would like the opportunity to fulfill my military obligation as a medical corpsman.

3.  (Issue) Request for the reinstatement of all military benefits associated with the reserve military forces if granted the opportunity to reenlist by the Board.

3.  (Reason) To help provide for my family and to open the doors to higher education that have thus far been unattainable to me.  Again, this will also feedback into a more successful military career.

In Conclusion:

Members of the Board, I wish I could erase the mistakes of my past and I apologize for the fact that I am having to take up your time to consider my requests.  I also know a lot of the issues mentioned above do not have much in the way of direct reasoning support from my military records.

I do hope that you can see my sincerity in wanting to correct the wrongs of my life.  I did not realize how damaging and how permanent the effects of my decisions back in 1999 would be.  I would just like the opportunity to be able to look my son in the eyes and explain to him that people do make mistakes but that if they work hard they can and will overcome anything that may be encountered in this life.

Again, I would like to thank you for your time and consideration regarding this matter and I look forward to hearing from you soon.”

Documentation

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

Applicant’s DD Form 214
Letter from Applicant 
Resumé (2 pp.)
Criminal background check
Certification cards (2 pp.)
List of references

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		971121 - 981012	COG

Period of Service Under Review:

Date of Enlistment:  981013		Date of Discharge:  990429

Length of Service (years, months, days):

	Active:   00  05  29  (Does not include lost time)
	Inactive:  None

Age at Entry:  18			Years Contracted:  6

Education Level:  11			AFQT:  66

Highest Rank:  Pvt			MOS:  9971

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  2.0 (2)			Conduct:  1.3 (3)

Military Decorations:  None

Unit/Campaign/Service Awards:  REB

Days of Unauthorized Absence:  31

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

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT-MARTIAL, authority:  MARCORSEPMAN Par. 6419.

Chronological Listing of Significant Service Events:

990412:	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 he understood the elements of the offense he was charged with. He further certified a complete understanding of the negative consequences of his actions and that characterization of service would be under other than honorable conditions.  The Applicant admitted guilt to the following violations of the UCMJ, Article 86: UA from 990207 to 990311.

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

990420:	GCMCA [CG, MCB, CAMPEN, 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 other than honorable conditions by reason of conduct triable by courts-martial.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19990429 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, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (D and E).

Issue 1.  On 19990412, the Applicant requested discharge for the good of the service to escape trial by court-martial.  In the request the Applicant admitted his guilt to being in an unauthorized absence status for 31 days.  He further certified a complete understanding of the negative consequences of his actions and that characterization of service would be under other than honorable conditions.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

Issue 2.  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.  

Issue 3.  The Board’s regulations limit its review to a determination on the propriety and equity of the discharge.  There is no requirement or law that grants recharacterization solely on the issue of obtaining military or veterans’ benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question.  No such inequity or impropriety occurred 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, and documentation of community service, are examples of verifiable documentation that may be 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 P1900.16E), effective 
18 Aug 95 until 31 August 2001.

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 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

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

E.  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