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USMC | DRB | 2000_Marine | MD00-00939
Original file (MD00-00939.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD00-00939

Applicant’s Request
The application for discharge review, received 000724, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The applicant requested a documentary record discharge review. The applicant listed the Veterans of Foreign Wars as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020901. 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 OTHER THAN HONORABLE CONDITIONS/VOL DIS (IN LIEU OF TRIAL BY COURT MARTIAL), authority: MARCORSEPMAN Par. 6419.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. Applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning his application. His records were reviewed on November 3, 2000 and the following comments are hereby submitted. We request the applicant's discharge be reviewed for fairness and equity. The applicant did attain the rank of Lance Corporal (E-3). He received two office hours for two separate periods of Unauthorized Absence. A total of 27 days absent without leave. We request this discharge be upgraded as warranted by the performance record for the entire enlistment. We refer this case to the Board for their careful and compassionate consideration and request the applicant's discharge be reviewed for an upgrade to a General Discharge under Honorable Conditions.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Statement from applicant
Two copies of USMEPCOM PCN 714ADP
Copy of DD Form 214 (3 copies)
Seventeen pages from applicant's service record
Character/job reference dated May 1, 1998
Employment evaluation dated January 8, 1999, April 17, 1998, January 3, 1999, April 18, 1998, April 30, 1998
Copy of letter of recommendation undated
Character reference undated

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                930511 - 941223  COG

 Period of Service Under Review :
Date of Enlistment: 930920               Date of Discharge: 941223

 Length of Service (years, months, days):

         Active: 01 03 04
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 56

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.8 (5)                       Conduct: 3.8 (5)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, Letter of Appreciation

 Days of Unauthorized Absence: 25

 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 :

940919   Unauthorized absence from 0531 15 September 1994 to 1730, 19 September 1994.

941013   Unauthorized absence from 0730 22 September 1994 to 1300 13 October 1994. Article 87: Through design missed the movement of Company A on 22 September 1994
941013:  Counseled for deficiencies in performance and conduct. [Two occasions of unauthorized absence and missing movement] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

941014:  Applicant to confinement.

941019:  Applicant from confinement.

941031:  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 (2 specifications): (1) Unauthorized absence from 0531, 15Sep94 to 1730, 19Sep94 (4 days/surrendered), (2) Unauthorized absence from 0730, 22Sep94 to 1300, 13Oct94 (21 days/surrendered), Article 87: Through design miss the movement of Company A on 22Sep94.

941116:  SJA review determined the case sufficient in law and fact.

941122:  GCMCA [Commander, Marine Corps Base Hawaii] 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 other than honorable conditions by reason of conduct triable by courts-martial.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 941223 under other than honorable conditions 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 VFW issue, t he applicant's case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The NDRB found the applicant’s service record devoid of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded. Relief is therefore, denied.

In a signed statement, the applicant requested an administrative discharge under other than honorable conditions in lieu of a trail by court-martial. He consulted with counsel and was fully advised of the implications of his request. The applicant understood that if discharged under other than honorable conditions, it might deprive him of virtually all veterans' benefits based upon his current enlistment, and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received there from may have a bearing. The applicant stated he understood the elements of the offenses with which he was charged. He admitted he was guilty of violating Article 86: unauthorized absence on two occasions, and of Article 87, missing movement of his assigned military unit.

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 the commission of serious violations of the Uniform Code of Military Justice (UCMJ). The applicant’s misconduct included unauthorized absence, and missing movement. The applicant’s conduct and proficiency markings, which form the primary basis for determining the character of his service, reflect his misconduct, and fall below that required for an honorable characterization of service. An upgrade to general under honorable conditions would be inappropriate. Relief is therefore denied.

The following is provided for the applicant’s edification. The NDRB is authorized to consider outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review. However, there is no law or regulation that provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the service. Normally, to permit relief, an error or injustice must be found to have existed during the period of enlistment in question. No such error or injustice is evident in the applicant’s service record.
At this time the applicant has not provided sufficient documentation of good character and conduct. Therefore no relief will be granted. The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at personal appearance hearing is highly recommended.

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 5420.174C 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 view DoD Directive 1332.28 and other Decisional Documents by going online at “ afls14.jag.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:

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


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