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Docket No. MD06-00509

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

FOR OFFICIAL USE ONLY

ex-PFC, USMC
Docket No. MD06-00509

Applicant’s Request

The application for discharge review was received on 20060223.  The Applicant requests the Discharge 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20061214.  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.

The NDRB did note administrative error(s) on the original DD Form 214.  Block 24, Character of Service, should read:  “UNDER OTHER THAN HONORABLE CONDITIONS.”  The Commandant, Headquarters USMC, Quantico, VA, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I am requesting the change for an opportunity to re-enlist.  I was young and stupid and have no other excuses for my actions.  I am now older and more mature and would greatly appreciate the opportunity to serve my country again.  This time I would like to do it honorably and without the mistakes of my youth.”

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)	19930825 - 19930831	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19930901		Date of Discharge:  19940928

Length of Service (years, months, days):

Active:    01  00  28  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  163 days
	Confinement:		  None

Age at Entry:  20

Years Contracted:  4

Education Level:  12				AFQT:  87

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):  National Defense Service Medal, Rifle Marksmanship Badge

*Not Available

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

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

Chronological Listing of Significant Service Events:

930825:	Pre-service waiver granted.

940221:	Applicant to unauthorized absence on 940221.  [Extracted from DD Form 214, Block 29.]

940223:	Applicant from unauthorized absence on 940223 (2 days).  [Extracted from DD Form 214, Block 29.]

940228:	Applicant to unauthorized absence at 0700 on 940228.

940808:	Applicant from unauthorized absence at 1550 on 940808 (161 days/surrendered).

940928:	DD Form 214:  Applicant discharged under other than honorable conditions in lieu of trial by court martial, authority: MARCORPSEPMAN Par. 6419.

Service Record Book did not contain the Administrative Discharge package.  
Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19940928 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 Applicant is requesting an upgrade of his discharge to honorable.  When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  Characterization of service as under other than honorable conditions  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 two Article 86 (unauthorized absence) violations of the Uniform Code of Military Justice.  The Applicant’s misconduct included unauthorized absence, from 940228 to 940808 for a period of 161 days.  The Applicant’s conduct which forms the primary basis for determining the character of his service, reflects his misconduct, and falls below that required for an honorable characterization of service.  An upgrade to honorable would be inappropriate.  Relief is therefore denied.

The Applicant is claiming youth and immaturity as a contributing factor for his discharge.  The statement contained in the application that the Applicant’s admission was due to his youth and immaturity was found to be insufficient justification to warrant a change in the reason for discharge.  Relief denied.

The Applicant states, “I am requesting the change for an opportunity to re-enlist.”  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 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 [e.g., 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