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Docket No. MD06-00286

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

FOR OFFICIAL USE ONLY

 ex-Pvt, USMC
Docket No. MD06-00286

Applicant’s Request

The application for discharge review was received on 20051122.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to 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 20061019.  After a thorough review of the available 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 to the Board:

“I was separated at an Entry Level Status while at SPTBN, MCRD, PISC RUC 32092.”

Documentation

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

Applicant’s DD Form 214  (Member 4)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	20010808 - 20011125	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20011126		Date of Discharge:  20020920

Length of Service (years, months, days):

Active:    00  09  25  (does not exclude lost time)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  240 days
	Confinement:		  None

Age at Entry:  18 

Years Contracted:  4 

Education Level:  12				AFQT:  74

Highest Rank:  Pvt				MOS:  9900

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  NA*				Conduct:  NA*

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  None

*Not Available

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:

011221:	Applicant to unauthorized absence at 0731 on 011221.

020122:	Report of Declaration of Deserter.  Applicant declared a deserter on 020120 having been an unauthorized absentee since 0731, 011221 from OIC, RAC, SPTBN, RTN, Marine Corps Recruit Depot, Parris Island, SC.

020818:	Applicant from unauthorized absence at 1000 on 020818.

undated:	Notification and acknowledgment of separation proceedings was provided to applicant but the reason for separation was not identified.
 
020820:	Applicant advised of rights and having elected not to consult with counsel, elected the right to obtain copies of the documents used to support the basis for the separation.  Applicant also acknowledges that this will be an Entry Level Separation.

020821:	Report of Return of Deserter.  Applicant surrendered to military authorities on 020818 (1000) at H&S BN, MCRD, PISC. 

undated:	Administrative Remarks:  Applicant acknowledged she was being separated by reason of separation in lieu of trial.

020829:	Applicant requested separation in lieu of trial.  [Extracted from Commanding Officer’s letter of 020906.]

020906:	SJA review determined the case sufficient in law and fact.

020906:	Commanding General, Marine Corps Recruit Deport/Eastern Recruiting Region, Parris Island, South Carolina, approved the Applicant’s request for separation in lieu of trial by court-martial, but disapproved her request for a character of service of general (under honorable conditions) and directed her discharged under other than honorable conditions.

Service Record Book contains a partial Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020920 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 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 government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  In the Applicant’s case, in the absence of a complete discharge package and without credible and substantial evidence to refute the Board’s presumption, the Board invoked the presumption of regularity.  Specifically, the Board presumed that the Applicant requested discharge to escape trial by court-martial; that the Applicant had the elements of the offense for which she was charged fully explained by counsel; that the Applicant admitted guilt to the offense; and that the Applicant had a complete understanding of the negative consequences of her actions.  

The Applicant implies that her discharge is improper and that her characterization should be uncharacterized because she was in an “Entry Level Status.”  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.  The Applicant requested separation in lieu of trial on 20020829, 276 days after her entry into active duty.  Therefore, the Board determined that the Applicant was not in an entry level status.  However, even if the Applicant had been eligible for an entry level separation, the Applicant requested separation to escape trial by court-martial.  Relief is not warranted.

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 a 240-day unauthorized absence.  The Applicant’s unauthorized absence is considered the commission of a serious offense, punishable by punitive discharge if awarded as part of the sentence upon conviction at special or general court martial.  The evidence of record does not demonstrate that the Applicant was not responsible for her conduct or that she should not be held accountable for her actions.  The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her willful failure to meet the requirements of her contract with the Marine Corps and falls far short of that required for an upgrade of her characterization of service.  Relief is not warranted.

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.  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 P1900.16F), 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