Author: CAP
Last saved by: joseph.curtis
Company: NCPB

Docket No. MD06-00779

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

FOR OFFICIAL USE ONLY

ex-LCpl, USMC
Docket No. MD06-00779

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 20070302.  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 at the time of issuance.  However, after consideration of the Applicant’s post-service accomplishments, the Board determined that partial relief was warranted on the basis of equity.  The Board’s vote was unanimous that the discharge shall change to:  GENERAL (UNDER HONORABLE CONDITIONS)/ Conduct triable by courts-martial (request for discharge for the good of the service), authority: authority:  MARCORSEPMAN Par. 6419, Separation Code “JFF1.”

PART I - ISSUES AND DOCUMENTATION

Decisional Issues

EQUITY – Youth impaired ability to serve.
EQUITY – Post war complications impaired ability to serve.
EQUITY – Discharge was the result of one major and a few minor incidents.

Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214 (USMC)
Applicant’s DD Form 214 (Army/ARNG)
Army Commendation Medal for service from February 25, 2004 thru February 23, 2005
Army Commendation Medal for service from April 27, 2002 thru May 11, 2002
Army Achievement Medal for service from June 2, 2001 thru June 22, 2001
Command Sergeant Major’s Training Excellence Award, dated June 22, 2001
Solider of the Year Certificate 2001
NCO Evaluation Report, dated January 20, 2006 (2 pages)
Character Reference ltr from Chief S_ B_, undated
Job/character reference ltr from E_ C_, Employee Relations Manager, Spartanburg Steel Products, dated June 16, 2006
NCO Evaluation Report, dated January 4, 2005 (2 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19890213 - 19890724	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19890725		Date of Discharge:  19921014

Length of Service (years, months, days):

Active:    03  02  20  (Does not exclude lost time)
	Inactive:  None

Time Lost During This Period:

	Unauthorized absence:  54 days
	Confinement:		  None

Age at Entry:  18

Years Contracted:  4

Education Level:  12				AFQT:  41

Highest Rank:  LCpl				MOS:  0481

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (13)				Conduct:  3.8 (14)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Rifle Sharpshooter Badge, Sea Service Deployment Ribbon, National Defense Service Medal, Southwest Asia Service Medal w/1 Bronze star (Saudi Arabia/Iraq/Kuwait), Kuwait Liberation Medal, Combat Action Ribbon, Navy Unit Commendation, Meritorious Unit Commendation

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

UNDER OTHER THAN HONORABLE CONDITIONS/Conduct triable by courts-martial (request for discharge for the good of the service), authority:  MARCORSEPMAN Par. 6419.

Chronological Listing of Significant Service Events:

900921:	Counseling:  Advised of deficiencies in performance and conduct (Steady decline in pro/con marks, a direct result of poor performance, poor military appearance and failure to be at appointed place of duty resulting in being dropped from the rifle range.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

910930:	Counseling:  Advised of deficiencies in performance and conduct (Violation of Article 86, in that LCpl M_(Applicant) reported to his unit, BTO Co 2^nd LSB, at approximately 1630, 910927 vice 0645, 910927.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920108:	NJP for violation of UCMJ, Article 86:  UA from 0730, 911210 to 0900, 911211.  Award:  Forfeiture of $216.00 per month for 1 month, correctional custody for 7 days.  Forfeiture suspended for 3 months.  Not appealed.

920417:	Applicant to unauthorized absence at 0731.

920519:	Applicant declared a deserter.

920602:	Applicant from unauthorized absence at 1130.

920714:	Applicant to unauthorized absence at 0701.

920721:	Applicant from unauthorized absence at 1300.

920816:	GCMCA, Commanding Officer, 2d Force Service Support Group, approved the Applicant's request for discharge under other than honorable conditions in lieu of trial by court-martial.

921014:	DD Form 214:  Applicant discharged under other than honorable conditions by reason of conduct trialable by court martial (request of discharge for good of service), authority:  MARCORSEPMAN par. 6419.

Service Record Book contains a partial Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19921014 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 at the time of issuance but that partial relief is warranted on the basis of post-service conduct (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(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 Board found that the Applicant’s post-service conduct was sufficiently creditable to warrant an upgrade to his characterization of service to general (under honorable conditions).  The Applicant’s honorable service in the Army/ANG, to include honorable service in Operation Iraqi Freedom, and his employment history demonstrate that he possesses character that was not evident during his service as a Marine.  His post-service actions show that his misconduct was most likely an isolated incident not reflective of his overall character.  However, the Board found that the Applicant’s post-service conduct does not sufficiently mitigate his misconduct to warrant full relief in the form of an honorable discharge.  Therefore, partial relief is granted.

The Applicant implies that his discharge is inequitable due to personal and familial problems as a result of his wartime service and his youth at the time of service.  While he may feel that his immaturity and personal and familial complications 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 on this basis is not warranted.

The Applicant implies that his discharge is inequitable because it was the result of only one major and a few minor incidents.  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 nonjudicial punishment proceedings for violation of Article 86 of the UCMJ.  The Applicant also received two retention warnings for deficiencies in his performance and conduct.  Subsequent to the Applicant’s retention warnings and nonjudicial punishment, the Applicant violated Article 86 of the UCMJ on two occasions.  One of the Applicant’s periods of unauthorized absence was in excess of 30 days and is, therefore, the commission of 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 Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief on this basis 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 P1900.16D), 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 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 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