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USMC | DRB | 1999_Marine | MD99-00626
Original file (MD99-00626.rtf) Auto-classification: Denied


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

SSgt, USMC
Docket No. MD99-00626

Applicant’s Request
The application for discharge review, received 990331, requested that the characterization of service on the discharge be changed to honorable o] general/under honorable conditions and the reason for the discharge be changed to convenience of the Government. The applicant requested a documentary record discharge review. The applicant listed American Legion as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000424. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain: UNDER CONDITIONS OTHER THAN HONORABLE/Misconduct-Absent without leave (admin discharge board required but waived), authority: MARCORSEPMAN Par. 6210.6.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)
1. (Propriety issue) This former member proffers that his UOTHC separation is improper because he was being process for a hardship discharge and left on authorized absence believing that his paper would be processed. He maintains that he never knowingly went UA, would have returned had he known he was in that status, and attributes his lengthy UCMJ violation and resulting UOTHC discharge to administrative error by the USMC. On this basis, he opines that upgrade of his character of service to honorable and a narrative reason change to hardship is warranted.

2. (Equity issue) This former member further requests that the board include provisions of SECNAVINST 5420.174C., enclosure (1), chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Applicant's Statement in Support of Claim dtd Jan 20, 1999
Copy of Applicant's original enlistment contract of 6 Feb 73
Applicant's Certificate of Military Service (Honorable Discharge) dtd Jan 17, 1996
Copy of Applicant's NAVMC 118(3) service entries (2 pages)
Copy of Applicant's Stragglers Orders dtd 27 Jul 92

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              730206 - 781114  HON
         Inactive: None

 Period of Service Under Review :
Date of Enlistment: 781115               Date of Discharge: 920731

 Length of Service (years, months, days):

 Active: 13 08 17 (Doesn't exclude lost time - applicant served only 7 months
29 days of his 3 year contract.)
          Inactive: None

 Age at Entry: 23                          Years Contracted: 3

 Education Level: 12                        AFQT: 63

 Highest Rank: SSgt

 Final Enlisted Performance Evaluation Averages: All enlisted performance reports were available to the Board for review.

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, Rifle Marksman Badge

Days of Unauthorized Absence: 4,760

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

UNDER CONDITIONS OTHER THAN HONORABLE /Misconduct-Absent without leave (admin discharge board required but waived), authority: MARCORSEPMAN Par. 6210.6.

 Chronological Listing of Significant Service Events :
781115:  Reenlisted for a term of three years at MARTD NAS Jacksonville, FL.
7811XX:  Applicant requested and was granted leave from 1530, 14NOV78 to 0745, 25NOV78
78XXX:   Applicant requested and was granted leave from 1530, 5DEC78 to 0745 16DEC78.
790705:  Applicant requested and was granted leave from 1530, 5JUL79 to 0745 13JUL79.
790713:  To unauthorized absence this date from Assault Amphibious Battalion, 4 th MarDiv, USMCR, NAS Jacksonville, FL.
790812:  Applicant being UA since 1301, 790713, declared deserter as of 1301, 790812 and dropped from the rolls at MARTD MARTC NAS Cecil Field, Jacksonville, FL.
790813:  Absentee Wanted by the Armed Forces (DD 553) issued.

 850704:  Service record entry indicates that applicant notified this date of being processed for an administrative discharge IAW MARCORSEPMAN Par 6312. Certified notification of rights mailed on 841004.
851107:  Service record entry indicates that notification of rights returned this date indicating nondeliverable.

860717:  Service record entry indicates notified this date of being processed for an administrative discharge IAW MARCORSEPMAN Par 6313. Certified notification of rights mailed this date.

Undated:         Deserter Check-Off List has the following notation: "Approx 1 year ago MHC found paperwork to SNM to begin Admin discharge Proceedings. SNM returned filled out paperwork and command will discharge proceedings. MHC took no further action!!!”

 920727:  Report of Return of Absentee. Applicant surrendered to military authority at Company B(-), Assault Amphibious Battalion, 4 th MarDiv,, USMCR, NAS Jacksonville, FL.

920727:  Applicant issued Stragglers Orders and was transferred to CG, 2 nd Marine Aircraft Wing, Cherry Pt. NC and applicant reported in at 1857 on this date.
920728:  Applicant joined CO, Headquarters and Headquarters Squadron (HQHQRON), Cherry Point, for administration of discipline. Member reported in at 1857 on 27 Jul 92.
920728:  CO, HQHQRON, MCAS, Cherry Point, requested Legal Administrative Officer, Joint law Center, MCAS Cherry Point process applicant for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense; desertion commencing on 13 Jul 1979 and that Applicant's service record book has been requested from CMC.
Undated:         Applicant notified by Deputy Provost Marshal, (Absentee/Deserter Unit), Headquarters, U.S. Marine Corps, of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense; desertion commencing on 13 Jul 1979. (This letter was signed but undated.)
Undated:         Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation. (This Acknowledgement of Rights was addressed to Head, Correction Branch, HRD. This letter was signed but undated.)

920731:  Applicant notified by CO,HQHQRON, MCAS Cherry Point, of intended recommendation for discharge under other than honorable conditions under paragraph 6210.6 of the MARCORSEPMAN by reason of misconduct due to commission of a serious offense.

920731:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board. (This Acknowledgment of Rights was addressed to CO, HQHQRON, MCAS Cherry Point.)

 NO RECORD OF ADMINISTRATIVE BOARD PROCEEDINGS IN SERVICE RECORD.
920731:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. Commanding officer’s comments (verbatim): "Retention of the respondent would adversely affect the morale, discipline, and military effectiveness of the organization.

920731:  GCMCA [Commander, MCAS, Cherry Point] advised CMC that applicant's discharge was approved under conditions other than honorable by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 920731 under conditions other than honorable for misconduct due to the commission of a serious offense (A and B). The Board presumed regularity in the conduct of governmental affairs (C). 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 (D and E).

In response to the applicant’s issue 1, the Board found that there is nothing in the applicant’s service record nor did the applicant provide sufficient evidence to show that he was being processed for a hardship discharge. The applicant was in an unauthorized status after his authorized leave extension, and then after 30 days was officially declared a deserter. According to the Manual for Courts-Martial, the Board found that this was enough to properly discharge the applicant for commission of a serious offense. The Board found it equitable based on the fact that it was over 30 days and it was a court martiable offense, for which the applicant could have received a Bad Conduct Discharge.

In response to the applicant’s request to have the narrative reason for discharge changed to “convenience of the government,” the Board found the applicant was properly discharged for commission of a serious offense based on his unauthorized absence of greater than 30 days and desertion. Whether the applicant was discharged in 1986 or 1992 is a non-decisional issue for the Board. It is irrelevant to the fact that the applicant was in an unauthorized status for over 30 days beginning 13 Jul 79.

In the applicant’s issue 2, there is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the Service. However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (D). Those factors include, but are not limited to, the following: evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct. At this time, the applicant has not provided any documentation of good character and conduct. Therefore no relief will be granted. The applicant is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15-years from the date of discharge.

It is recommended that the applicant petition BCNR to request relief concerning his date of discharge.

 Pertinent Regulation/Law (at time of discharge)

 A. Marine Corps Separation and Retirement Manual, ( MCO P1900.16D), effective 890627 until 950817, Paragraph 6210, Misconduct.
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., Article 86, unauthorized absence for more than 30 days].
C. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

E. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 obtain a copy of DoD Directive 1332.28 by writing to:
                  DA Military Review Boards Agency
                  Management Information and Support Directorate
                  Armed Forces Reading Room
                  Washington, D.C. 20310-1809

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:

                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                  Washington Navy Yard
                  720 Kennon Street SE Rm 309
                  Washington, D.C. 20374-5023     


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