Author: CAP
Last saved by: shirley.robertson
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Docket No. MD04-01411

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

ex-PVT USMC
Docket No. MD04-01411

Applicant’s Request

The application for discharge review was received on 20040909.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests 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 20041222.  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:

“I was found medically unfit to continue serving in the United States Marine Corps per the attached document(s) from the the administrating doctor due to breathing problems (asthma).  I left the San Diego Recruit Depot before I had -signed my DD-214 on the date administration told me I was to be discharged.  My Basic Marine Platoon captain issued a warrant for me stating I was AWOL.   While home I tried to clear this up with administration that told me I was indeed discharged and verbally (over the phone) told civilian authorities the same thing.  After a few weeks Civilian authorities returned to my home to serve a warrant that had been issued to return me to base because they said the warrant was still in the system and they wanted to get it out of their system.  When I returned to MCRD San Diego, I was told by my legal counseling to take a "Separation in Lieu of Court Martial" so that they could just expedite my paperwork and get me back home.  I do not feel that I did anything to deserve the dishonor of an "OTH" discharge.  I would like to be redeemed and received an Honorable discharge status based on these facts.  The reason I waited 10 years to submit for this is because, as an upstanding citizen, I would like to be a police officer for the city of Long Beach, and I feel this   has/will render my chances of proving what I have to offer.  I would hate to think that a small misunderstanding in communication could scar me for the rest of my life.  Please consider my request for the upgrade in discharge status.

Thank you for your time and attention to this matter.”

Documentation

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

Copies of pages from Applicant’s Medical Record, (3 pages)

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		921103 - 921228	COG

Period of Service Under Review:

Date of Enlistment:  921229		Date of Discharge:  930723

Length of Service (years, months, days):

	Active:    00  06  25
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  54

Highest Rank:  Pvt			MOS:  9971

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.1 (2)			Conduct:  2.7 (2)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  47

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:

930419:	Examination at Branch Medical Clinic Marine Corps Recruit Depot San Diego, CA.  Applicant diagnosed with asthma.  Disposition: referred for administrative/medical entry level separation.  Member’s (Applicant) present condition is not physically qualified in accordance with the physical standards for enlistment as opposed to physical unfitness by reason of physical disability as defined in Appendix (A) of SECNAVINST 1850.4C (Disability Evaluation Manual).  Member’s condition is unlikely to change in the future.

930420:	Applicant signs a letter from the Branch Medical Clinic, MCRD which states that the “SNM (Applicant) was found qualified for active duty on 3 Nov 92 based on enlistment SF-88 dated 3 Nov 92 and P-2 physical (SF-600) dated 31 Dec 92.  This physical qualification validates SNM for separation.  You (Applicant) have been examined during the last 90 days and are considered physically qualified for separation from active duty.”

930422:	Applicant to UA.

930523:	Applicant declared a deserter on 930523 having been an unauthorized absentee since 0500, 930422 from Basic Marine Platoon, Support Battalion, Recruit Training Regiment, Marine Corps Recruit Depot, San Diego, CA.

930607:	Applicant apprehended by civil authorities on 930607 (1630) at Santa Ana, CA.   Returned to military control 930608.  Delivered to Marine Corps Recruit Depot, San Diego, CA.

930623:	Charge Preferred against the Applicant.  Violation of Article 85, UCMJ: In that P_ H_ W. C_, Basic Marine Platoon, Support Battalion, Recruit Training Regiment, Marine Corps Recruit Depot, San Diego, CA, did, on or about 22 April 1993, without authority and with intent to remain away there from permanently, absent himself from his unit, to wit: at the Marine Corps Recruit Depot, San Diego, CA, and did remain so absent in desertion until he was apprehended on or about 7 June 1993.

930707:	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 although he was requesting a characterization of service under honorable conditions, he would accept a characterization of service of under other than honorable conditions.  The Applicant admitted guilt to the following violation of the UCMJ:  Article 85, absent without leave.

930719:	GCMCA, Commanding General, Marine Corps Recruit Depot, San Diego, CA, approves the Applicant’s request for separation in lieu of trial by court-martial. Applicant to be separated with an under other than honorable conditions characterization, separation code of KFS1, and a reenlistment code of RE-4.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19930723 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).

On 930707, the Applicant 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 was guilty of the offenses.  He further certified a complete understanding of the negative consequences of his actions and that characterization of service could 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.

The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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 naval service.  The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided sufficient documentation for the Board to consider.  Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time.  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, Article 85 desertion.

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

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.