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USMC | DRB | 2000_Marine | MD00-00952
Original file (MD00-00952.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD00-00952

Applicant’s Request
The application for discharge review, received 000731, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to honorable, and also reenlistment code so I can rejoin the military. 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 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 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. (Equity Issue) As the documentary evidence of record supports, this former member opines that his post-service conduct has been sufficiently creditable to warrant the Board's clemency relief as authorized under provision of SECNAVINST 5420.174C, enclosure (1), paragraph 9.3.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Copy of Travel Voucher
Copy of Separation Enlistment Voucher (2pgs)
Copy of Travel Voucher or Subvoucher
Copy of Certificate in Lieu of Orders
Copy of Separation Travel Allowances Election Certificate
Copy of Travel Voucher
Copy of Degree Verification
Copy of Transcript Recipient Letter
Copy of Transcripts (3pgs)
Copy of Grade Reports (2pgs)
Copies of GED Results (2pgs)
Copy of GED Certificate of Achievement
Copy of Reference Letter
Copy of ACT Assessment Student Report (4pgs)
Copy of Certificate of Completion for Sales Training Seminar
Copy of Certificate of Award (We Care Training)
Copy of PFC Appointment Certificate
Copy of Motor Vehicle Operator Course Report
Copy of Medal
Copy of Certificate of Completion for Motor Vehicle Operator Course

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                860214 - 860722  COG

 Period of Service Under Review :
Date of Enlistment: 860723               Date of Discharge: 880303

 Length of Service (years, months, days):

         Active: 01 05 12
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 45

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.12 (5)             Conduct: 3.7(5)

 Military Decorations: None

 Unit/Campaign/Service Awards: Rifle Marksman Badge

 Days of Unauthorized Absence: 57

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 :

870512:  NJP for violation of UCMJ, Article 86: UA from 0801 870407 to 1750 870502 [25days/Surrendered] from his unit.
 Awarded forfeiture of $329.00 pay per month for 1 months, restriction and
extra duties for 30 days, reduction to E-1 . Not appealed.
871209:  Applicant declared a deserter on 871209 having been an unauthorized absentee since 0631, 871209 from 2ndBn, 11thMarDiv, CamPen, CA.

880116:  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: UA from 871204-871207 [3days] and 871209-880108 [29days].

880127:  Memorandum from Officer in Charge ascertaining the opinion of the Commanding Officer exercising special court jurisdiction over the accused, recommended approval of the requested discharge. Obtained by phone conversation.

880203:  SJA review determined the case sufficient in law and fact.

880204:  GCMCA [Commanding General 1MarDiv] 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 880303 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, 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. In fact, the Board found the applicant had been afforded counseling on his deficiencies, and was offered many avenues to correct his pattern of unauthorized absence. Relief is therefore, denied.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reentry into the naval service or any other of the Armed Forces. Reenlistment policy is promulgated by the Commandant, United States Marine Corps, Code MMEA, 3280 Russell Road, Quantico, VA 22134. A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter. Relief, on this basis 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. In determining whether a case merits a change based on post-service conduct, the NDRB considers the length of time since discharge, the applicant's record of community service, employment, conduct, educational achievements, and family relationships. While the applicant’s education pursuits are applauded, his efforts need to be more encompassing than those provided. The applicant should have produced evidence of a verifiable employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs in order for consideration for clemency based on post-service conduct. 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 remains eligible for a personal appearance hearing provided that an application is received within 15 years from the date of discharge.









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 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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