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Docket No. MD05-01569

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

FOR OFFICIAL USE ONLY

 ex-LCpl, USMC
Docket No. MD05-01569

Applicant’s Request

The application for discharge review was received on 20050920.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions).  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 20060824.  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 by reason of separation in lieu of trial by court-martial.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I request that my discharge be upgraded on the grounds of my performance outside or since my discharge from the Marine Corps.  During my tour, I became emotionally unstable due to the loss of my son, lack of family support, and professional counseling.  Since my discharge I have earned to college degrees and become a school teacher while working on a third degree.  I work diligently with the youth during and after school to ensure that they become productive citizens.  My goal is to become a college professor, which could allow me to continue my efforts in educating the American youth.  I have had no criminal or legal issues upon my discharge.  I seek to have my discharge upgraded to a general as a means of attaining all the privileges and right that are endowed under a general discharge.”

Documentation

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

Professional Educator Certificate dtd July 1, 2005
Applicant’s DD Form 214
Applicant’s DD Form 215
Bachelor of Science in Education Degree from Auburn University, dtd May 8, 2004

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19920622 – 19930607		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19930608		Date of Discharge:  19970313

Length of Service (years, months, days):

Active:    03  09 06  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  387 days
	Confinement:		  18 days

Age at Entry:  17 (Parental Consent)

Years Contracted:  4 

Education Level:  12				AFQT:  65

Highest Rank:  LCpl				MOS:  6531

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (7) 			Conduct:  4.1 (7)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  National Defense Service Medal, Sea Service Deployment Ribbon, Armed Forces Expeditionary Medal, Joint Unit Commendation, Meritorious Unit Commendation.

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:

940107:	Applicant to unauthorized absence at 1800 on 940107.

940131:	Applicant from unauthorized absence at 0635 on 940131 (24 days/surrendered).

940218:	To confinement.

940218:	Summary Court-Martial.
	Charge: violation of the UCMJ, Article 86:
	Specification: Unauthorized absence from MATSS-901, MATSG-90, NATTC, NASMFS, MILL, TN dur the prd 1800, 7JAN94 through 0635, 31JAN94.
	Finding: to Charge and the specification thereunder, guilty.
	Sentence: Forfeiture of $554.00 pay per month for 1 month, reduced to E-1, confinement for 21 days.
	CA action 940218:  Sentence approved and ordered executed.  Reduction to Private, E-1 suspended for 6 months.

940307:	From confinement.

940325:	Acknowledged understanding of eligibility but not recommended for promotion to LCPL for the month of March-August 1994 due to a recent court martial.  Applicant chose not to make a statement 

950724:	Counseling:  Advised of deficiencies in performance and conduct (2 counts of making false statement to my Division Officer and 1 count of writing bad checks.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960110:	Applicant to unauthorized absence at 0731 on 960110.

960209:	Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 86:  In that Lance Corporal R_ D. P_ (Applicant), U.S. Marine Corps, Marine Light Attack Helicopter Squadron 267, Marine Aircraft Group 39, 3d Marine Aircraft Wing, MarForPac, MCB, Camp Pendleton, California 92055-5791, did, on or about 0731, on 10 January 1996, absent himself from this unit without authority, to wit: HMLA-267 Box 555791, Camp Pendleton, California 92055-5791 and did remain until

970108:	Applicant from unauthorized absence at 0745 on 970108 (363 days/surrendered).

970108:	Psychiatric evaluation of Applicant by M.M. J_, M.D. USN.  
	AXIS I:  309.0 Adjustment D/O with Depressed Mood occupational Problem. 
	AXIS II: deferred
	AXIS III: None.
	Assessment:
	Plan:
1.	strongly advise counseling at FSC
2.	F/U with medical prn
3.	Discourage incarceration
4.	SNM fully.

970113:	To confinement.

970221:	From confinement.

970313:	DD Form 214: Applicant discharged under other than honorable by reason of conduct triable by court-martial requested for discharge for the good of the service per MARCORSEPMAN PAR 6419. 

Service Record Book did not contain the Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19970313 in lieu of trial by court-martial (A and B) with a service characterization of under other than honorable conditions.  After a thorough review of the available 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).

In the absence of a complete discharge package, the Board presumed regularity of governmental affairs.  As such, the Board presumed that the Applicant requested discharge to escape trial by court-martial; that the Applicant had the elements of the offense(s) for which he was charged fully explained by counsel; that the Applicant admitted guilt to the offense(s); and that the Applicant had a complete understanding of the negative consequences of his actions.  While the Applicant was diagnosed with an adjustment disorder, 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.

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’s service was marred by Summary Court Martial for an unauthorized absence of 24 days.  This was followed by a period of unauthorized absence of 363 days.  Under Article 86 of the Uniform Code of Military Justice an unauthorized absence of 30 days or more is considered a serious offense and is punishable by a punitive discharge.  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.

The Applicant contends his disciplinary problems were the result of stress caused by his family situation.  The NDRB recognizes that serving in the U.S. Marine Corps is challenging.  Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country.  It must be noted that most members of the Marine Corps serve honorably and therefore earn their honorable discharges.  In fairness to those members of the Marine Corps, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due.  The NDRB found that the Applicant's service was equitably characterized.  Relief denied.
.
In the Applicant’s case he requests upgrade of his discharge based on post service conduct.  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.  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.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not to mitigate the conduct, which precipitated the discharge.  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 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 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 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