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USMC | DRB | 2000_Marine | MD00-01090
Original file (MD00-01090.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD00-01090

Applicant’s Request
The application for discharge review, received 000926, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant did not list any representative on the DD Form 293. In the acknowledgement letter the applicant was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington, D.C. area. Applicant did not respond.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010309. 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. My undesirable discharge was inequitable because it was based on one isolated incident in my time of service, with no other adverse action.

2. I had a model record up until this one incident. Was screened for barracks duty twice, with first promotion in field to PFC.

3. I was irresponsible to have made such a rash action at that young age. Our first son was baby and I was very much torn between family and duty. Had I thought it out, we could have had both. Was very excited to start career as merchant mariner and family life.

4. I have never been in trouble with any law enforcement of any level. I do not drink, smoke and I am in good physical health. My family and I attend Silver Street United Methodist Church in New Albany Indiana.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of civilian criminal records check dated November 8, 2000
Job/character reference dated August 4, 1998
Copy of work schedule (3 pages)
Copy of license for United States Coast Guard dated April 3, 1996
Copy of license for United States Coast Guard dated August 25, 1998
Copy of Certificate of Completion for Radar Operation Course dated November 11, 1994
Copy of Certificate of Completion for U.S.C.G. Approved Radar Observer Certification -Rivers dated March 28, 1996
Copy of Certificate of Training for Combined-Basic/Advanced Marine Firefighting Training Course dated June 14, 1996
Copy of Certificate of completion of Advance Pilothouse Management dated January 9, 1998
Letter re: General Education Development Diploma dated January 26, 2000
Copy of official report of test results dated January 21, 2000
Copy of General Education Development Diploma dated January 21, 2000
Letter from Kennedy-Western University dated February 8, 2000, March 13, 2000, March 17, 2000, and August 8, 2000
Copy of credit report

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                840608 - 850203  COG

 Period of Service Under Review :
Date of Enlistment: 850204               Date of Discharge: 861202

 Length of Service (years, months, days):

         Active: 01 09 29
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 42

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.2 (2)                       Conduct: 4.3 (2)

 Military Decorations: None

 Unit/Campaign/Service Awards: None

Days of Unauthorized Absence: 330

 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 :

851011:  Counseled for deficiencies in performance and conduct. [Unauthorized absence on 2Oct85 in which applicant missed rifle range safety brief.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

851118:  Applicant to unauthorized absence 0530, 18Nov85.

861014:  Applicant from unauthorized absence 0720, 14Oct86.

861031:  Charges preferred to summary court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 86: Unauthorized absence (UA) from 0530, 18Nov85 until 0720, 14Oct86 (330 days/Surrendered).

861120:  GCMCA [Marine Corps Development and Education Command] 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 861202 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 considering the applicant’s first and second issues, the Board disagrees that the applicant’s “…discharge was inequitable as it was based on one isolated incident in my time of service, with no other adverse action.”. A review of the applicant’s service record reveals he served a total of 1 year, nine months, and 29 days of an obligation contracted for four years. In that short time, the applicant was awarded two adverse counseling entries and referral to a Summary Court-Martial for violation of Article 86, UCMJ. The period of unauthorized absence was for a period of 330 days. Subtracting the period of absence from his total time of service shows the applicant actually served only about 11 months of his obligation. A record of adverse counseling entries and commission of an offense triable by Court-Martial does not support the applicant’s claim of “model record”. The Board also noted the applicant’s admission of pre-service drug use.

 When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as honorable. 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 a serious violation of the Uniform Code of Military Justice (UCMJ). The applicant’s misconduct included unauthorized absence, for a period of 330 days. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a court-martial for violation of the UCMJ, Article 86, unauthorized absence for more than 30 days.

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 therefrom may have a bearing.

In considering the applicant’s third issue, the Board found that the applicant’s age, education level, and test scores qualified him for enlistment. While he may feel that his immaturity was a factor that contributed to his actions, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service. The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

The NDRB recognizes that serving in the Marine Corps is very challenging. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country. It must be noted that most Marines serve honorably and well and therefore earn honorable discharges. In fairness to those Marines, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due. While the NDRB respects the fact that the applicant tried, his service is equitably characterized as being performed under other than honorable conditions. Relief is not warranted

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 Board applauds the applicant’s diligence in pursuing his career as a riverboat pilot, the applicant's efforts need to be more encompassing than those provided. The offense of unauthorized absence for such an extended time is a very serious offense, in fact the applicant was dropped from Marine Corps rolls as a deserter. The applicant is reminded that had the Commanding General not approved his request for an administrative separation in lieu of trial by court-martial, he could have been awarded a punitive discharge, been confined at hard labor and declared a convicted felon. The applicant must demonstrate through service to the community that he understands his debt to society and is willing to repay that debt. Documentation of the applicant’s efforts to date appears to show those efforts to be exclusively performed to benefit the applicant and his immediate family. In order to rehabilitate his military reputation which was sullied by his misconduct, and become eligible for an upgrade to his discharge, the applicant should have produced documentation of community service, family stability, 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 at this time.

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. As that time is near at hand, the Board strongly recommends the applicant schedule a personal appearance hearing before the Board as soon as possible. If the applicant can demonstrate to the satisfaction of the Board his remorse for his misconduct, his efforts to atone for failing to complete his obligation to the United States, and the impact on his life and his family an upgrade to his discharge would provide, the Board will hear the applicant in person, exercise every consideration and deliberate with compassion upon his request.
Counsel at a personal appearance hearing is recommended but not required. This counsel need not be a lawyer, but may be any person of stature in the applicant’s community with personal knowledge of his character and behavior. Witnesses are also welcome to appear to testify on behalf of the applicant’s petition. The Board extends its hope the applicant will appear and provide sufficient contributions to society to justify an upgrade to his 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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