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USMC | DRB | 1999_Marine | MD99-01121
Original file (MD99-01121.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD99-01121

Applicant’s Request
The application for discharge review, received 990820, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions. The applicant requested a documentary record discharge review. The applicant did not list any 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/Separation in lieu of trial by court-martial, authority: MARCORSEPMAN Par. 6419.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. Prior to my being discharged under other than honorable, I had been serving my capacity as an infantryman without no other adverse actions against me or brought on by me. As you will review my service record, you will see the date when I was injured. Base doctors who diagnosed my condition as “iliotibial tract syndrome” subsequently saw me. This is a condition of the iliotibial band that helps to support the lateral aspect of a person's leg. Somehow I had injured mine out in the field during an exercise in my infantry division. I brought the injury to the attention of my platoon sergeant and so on down the chain of command.I was told the best remedy for this would be plenty of rest, no extreme physical activity for 3 months. When my unit was assigned to go overseas for a six-month deployment I was assigned duty to Special Services.While there I went through a self regimented course of moderate strength training and appropriates exercise. Within 8 months of such rehab I expected I would be able to join my company again actively with no restrictions.However upon returning back to Camp Pendleton those in my company told me I would have to take part in a 25 mile Company hike. I talked with my Gunnery Sergeant who didn't do anything to keep me out, nor was I granted permission to be reevaluated by a doctor. Although I did not want to go AWOL, I chose to do so lest I reinsured my leg as it was slowly making progress since being overseas. I feel I had a commitment made to serve the Marine Corps. I signed up one entire year early in the delayed entry program. Only after I felt I would be at risk of reinjurying further my leg, did I feel no other way out of my action? If not granted an Honorable, I would seek General/Under Honorable Conditions.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                810629 - 820620  COG

 Period of Service Under Review :
Date of Enlistment: 820621               Date of Discharge: 850604

 Length of Service (years, months, days):

         Active: 02 11 14 (incl.lost time)
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 50

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.2*                          Conduct: 3.8*

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR

Days of Unauthorized Absence: 353

*Extracted from SJA's recommendation.

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

UNDER CONDITIONS OTHER THAN HONORABLE /Separation in lieu of trial by court-martial, authority: MARCORSEPMAN Par. 6419.

 Chronological Listing of Significant Service Events :

830608:  Counseled for deficiencies in performance and conduct. [In-cooperative attitude and shirking. It was further explained that all medical attention will be in order to resolve chronic ligament ailment which has resulted in extended light duty for several months.]

830609:  NJP for violation of UCMJ, Article 86:
 Specification: Unauthorized absence from 0900, 21May83 to 0530, 23May83 (2 days/surrendered).
Awarded forfeiture of $167.00 per month for 1 month, restriction and extra duties for 14 days. Not appealed.
840524:  Applicant to unauthorized absence 0630, 24May84.

 840710:  Applicant declared a deserter having been an unauthorized absentee since 0630, 840524 from 2 nd Bn, 5 th Mar, 1 st MarDiv (REIN) FMF Camp Pendleton, CA.

850517:  Applicant surrendered to Marine Corps Chaser and was delivered under guard to Sub Unit #1, HqCo, HqBn, 1stMarine Division (REIN) FMF, Camp Pendleton, CA at 1910, 850517 (353 day/surrendered).
850523:  Applicant, having consulted with counsel certified under UCMJ Art 27b, requested discharge for the good of the service to escape trial by court- martial. In the request the applicant noted that his counsel had fully explained the elements of the offenses for which he was charged and that he understood the elements of the offenses. He further certified a complete understanding of the negative consequences of his actions and that characterization of service would be under other honorable conditions. The applicant admitted guilt to the following violations of the UCMJ, Article 86: Unauthorized absence 24May84 to 17May85.

850530:  SJA review determined the case sufficient in law and fact.

850531:  GCMCA [Commanding General, 1 st Marine Division (Rein), FMF, Camp Pendleton ] determined that applicant had no potential for further service, that separation in lieu of trial by court-martial was in the best interest of the service, and directed discharge under conditions other than honorable by reason of conduct triable by courts-martial.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 850604 under conditions other than honorable in lieu of trial by court-martial (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 the applicant’s issue 1, the Board found that the applicant had been diagnosed with iliotibial tract syndrome, however, it also found that the last medical entry dtd 8Feb84, from the Orthopedic surgeon, indicated that he was returned to full duty. The applicant has not provided any proof to the contrary. Furthermore, the applicant went UA to avoid a 25 mile hike, and then was declared a deserter for a total of 353 days. The applicant has not provided any proof that he was unable to complete the hike. Relief denied.

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 P1900.16C), Change 2, effective 15 May 84 until 26 Jun 89.

 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 St SE Rm 309
                  Washington, D.C. 20374-5023     


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