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

FOR OFFICIAL USE ONLY

ex-PFC, USMCR
Docket No. MD06-00777

Applicant’s Request

The application for discharge review was received on 20060516.  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 20070223.  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 - ISSUES AND DOCUMENTATION

Decisional Issues

EQUITY – Post-service.

Documentation

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

Applicant’s DD Form 214 (Member 4)
Meritorious Mast Certificate dated April 22, 1999
Two Certificates of Achievement from the Marine Corps Association, dated April 22, 1999
Character Reference ltr from L_ J. O_, United States Magistrate Judge, United States District Court, Fresno, CA, dated March 24, 2006
Character Reference ltr from B_ R_, Associate Chief Deputy Commissioner, Board of Parole Hearings, dated April 12, 2006
Character Reference ltr from D_ R_, Supervisor, Department of Corrections, dated March 28, 2006
Character Reference ltr from J_ W_, Captain, USMC Ret, dated April 18, 2006
Character Reference ltr from Maj K_ N_, US Army (RET), dated April 11, 2006
Character Reference ltr from J_ L_, Program Director, Turning Point of Central California, dated April 12, 2006
Certificate of Achievement, dated June 2, 2002

PART II - SUMMARY OF SERVICE

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

	Inactive:  None
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19980608		Date of Discharge:  20030618

Length of Service (years, months, days):

Active:    00  08  10  (Does not exclude lost time)
	Inactive:  03  10  28

Time Lost During This Period (days):

	Unauthorized absence:  6 
	Confinement:		  None

Age at Entry:  18

Years Contracted:  8

Education Level:  12				AFQT:  41

Highest Rank:  PFC				MOS:  2531

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (6)				Conduct:  3.9 (6)

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

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:

981109:	Applicant reported for initial tour of active duty for training.

990423:	Applicant released from initial tour of active duty for training with an Honorable by reason of completion of required active service (USMCR) IADT.

991108:	Letter of unsatisfactory participation for 18-19 September and 1-3 October 1999 sent.

991205:	Applicant administratively reduced to Private for unsatisfactory participation in the SMCR with an effective date of 11 November 1998.

001225:	Applicant not recommended for promotion due to assignment to weight control.

010529:	Letter of unsatisfactory participation for 18, 19, 20 May 2001 sent.

xxxxxx:	Applicant not recommended for promotion for 1st Quarter 2002 due to assignment to weight control.

xxxxxx:	Applicant not recommended for promotion for 2nd Quarter 2002 due to unauthorized absences.

xxxxxx:	Applicant not recommended for promotion for 3rd Quarter 2002 due to unauthorized absences.

xxxxxx:	Applicant not recommended for promotion for 4th Quarter 2002 due to unauthorized absences.

021208:	Applicant not recommended for promotion for Jan 2003 due to unsatisfactory participation.

030324:	Commenced active duty.  Activated in support of OEF.

030326:	Applicant to unauthorized absence.  [Extracted from DD Form 214, Block 29.]

030331:	Applicant from unauthorized absence (6 days).  [Extracted from DD Form 214, Block 29.]

030613:	GCMCA, Commander, Marine Corps Air Bases Western Area, directed the Applicant's discharge under other than honorable conditions in lieu of trial by court-martial.

Service Record Book contains a partial Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20030618 in lieu of trial by court-martial (A) 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 (B and C).  The Board presumed regularity in the conduct of governmental affairs (D).

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.  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.

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 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 post-service documentation to consider mitigating the misconduct that resulted in the characterization of discharge.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.   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.  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.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

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

D.  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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 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