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Docket No. MD05-01185

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

FOR OFFICIAL USE ONLY

 ex-PVT, USMC
Docket No. MD05-01185

Applicant’s Request

The application for discharge review was received on 20050708.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to Entry Level Separation or Uncharacterized.  The Applicant requests a documentary record discharge 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 20060131.  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 and the reason for discharge shall not change.  The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to the commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application from an attached letter to the Board:

“I am writing this letter because I have realized how my youth and immaturity had caused me to grave mistakes when I was in the USMC.  I was very wrong in the things I have done and have been very sorry the way I handled the situation.  Everyday I hear about our troops fighting in other countries such as Iraq and I feel like I should be out there with them.  A couple of years ago I had made a bad mistake to go UA from my appointed duties and I wish to repay this debt to my country by being able to reenlist within the armed forces and joined my fellow troops in the constant battle against all aggressors to our great nation.  I have matured a lot since I was in the USMC and have learned many things about the world and how things work.  Although I do not deserve the honor of your generosity I still humbly ask to have my discharge and RE code upgraded in order for me to be able to rejoin the armed forces as a fully active service member and serve my country pride.  Please consider this letter as a personal apology to my country and all of instructors that had spent their quality time to train me and teach me the way things work in the real world.

[signed]  Y_ D_ (Applicant)”

Documentation

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

Applicant’s DD Form 214  (Member 1)
Applicant’s DD Form 214  (Member 4)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	20020619 – 20020722		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20020723		Date of Discharge:  20030418

Length of Service (years, months, days):

Active:    00  08  26  (Does not include lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  55 days
	Confinement:		  23 days

Age at Entry:  18 

Years Contracted:  4 

Education Level:  12				AFQT:  76

Highest Rank:  PVT				MOS:  9900

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 				Conduct:  4.3

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  National Defense Service Medal, Marksman Rifle Badge

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.6.

Chronological Listing of Significant Service Events:

021114:	Applicant to UA.

030108:	Applicant from UA.

030131:	Summary Court-Martial.
	Charge: violation of the UCMJ, Article 86:
	Specification:  In that Private D_ (Applicant), U. S. U.S. Marine Corps, did, on or about 2200, 14 Nov 02, without authority absent himself from his appointed place of duty, at which he was required to be, to wit:  Student Admin Company, Headquarters Support Battalion school of Infantry, Training Command, Camp Lejeune, and did remain so absent until on or about 1650, 08 Jan 03.
	Plea: to Charge and the specification thereunder, guilty.
	Finding: to Charge and the specification thereunder, guilty.
	Sentence: Forfeiture of $767.00 pay per month for 1 month and 30 days of confinement.
	CA action 030206:  Sentence approved and ordered executed 

030131:	Applicant to confinement.

030206:	Applicant notified of intended recommendation for discharge by reason of commission of serious offense with a characterization of service as under other than honorable conditions.  The factual basis for this recommendation was unauthorized absence from 14 November 02 to 08 January 03, a violation of Article 86.  

030207:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

030219:	Commanding Officer, Headquarters and Support Battalion, School of Infantry, Training Command, Camp Lejeune, recommended to Commanding General, Marine Corps Base, Camp Lejeune, via Commanding Officer, School of Infantry, Training Command, that the Applicant be discharged under other than honorable conditions by reason of a commission of a serious offense based on the provisions of paragraph 6210.6 of the reference.  The factual basis for this recommendation was based upon his commission of a serious offense (Article 86).  Commanding Officer’s comments:  “Pvt D_ (Applicant) has demonstrated a blatant disregard for rules and regulations that govern the good order and discipline of the Marine Corps.  Pvt D_ (Applicant) has shown a definite lack of Honor, Courage and Commitment.  He has proven to me that he does not possess the discipline for continued service in the Marine Corps.” 

030223:	Applicant from confinement.

030305:	Commanding Officer, School of Infantry, concurred with recommendation that the Applicant be discharged under other than honorable conditions by reason of commission of a serious offense.

030418:	DD-214, Applicant discharged this date.

Service Record Book contains a partial administrative discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030418 by reason of misconduct due to the commission of a serious offense (A and B) with a service characterization of under other than honorable conditions.  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).  The Board presumed regularity in the conduct of governmental affairs (E).

The Applicant contends that his problems in the Marine Corps can be attributed to his "youth and immaturity."  While he may feel that this was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

When the service of a member of the U.S. Marine Corps has been honest and faithful, it is appropriate to characterize that service as honorable.  An under other than honorable conditions discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record.  The Applicant was found guilty by a summary court-martial for violation of Article 86 (UA for 55 days) of the UCMJ.  Violation of UCMJ Article 86, UA for more than 30 days, is considered a serious offense.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

By regulation, members notified of intended recommendation for discharge within the first 180 days of enlistment are eligible for an uncharacterized or entry-level separation characterization of service.  On 20030206, the 198^th day of the Applicant’s service, the Applicant was notified of the intended recommendation for by reason of commission of serious offense with a characterization of service as under other than honorable conditions.  The summary of service clearly documents that misconduct due to commission of serious offense was the reason the Applicant was discharged.  No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable.  Relief denied.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

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 additional evidence related to this discharge.  Representation at a personal appearance hearing is recommended but not required.	

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 01 September 2001 until Present).

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 V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.  

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