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USMC | DRB | 2001_Marine | MD01-00226
Original file (MD01-00226.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD01-00226

Applicant’s Request
The application for discharge review, received 001212, requested that the characterization of service on the discharge be changed to general/under honorable conditions and the reason for the discharge be changed to convenience of government hardship. 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 010615. 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/Conduct triable by courts-martial (request for discharge for the good of the service), authority: MARCORSEPMAN Par. 6419.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

 1. Clemency, first and foremost I am requesting clemency. I believe that the mistake of my youth has become a "life sentence" of severe prejudice. I am asking that this entire request be viewed with merciful eyes. In the past several years since my undesirable discharge, I have remarried and have two little girls who are the lights of my life. I am a solid citizen and am well respected in my community. Over the past several years I have been dedicated to volunteerism and community service in the following ways: Sheriff Department volunteer with over 250 hours logger over the past 2 years, Volunteer Firefighter Trainee, Vacation Bible School volunteer for the past two summers, After School Bible Club volunteer assistant teacher, Donated a great many hours to assist in church building construction at Grace Church of the Sierra, Church grounds maintenance as a volunteer at Grace Church of the Sierra, Volunteer my time to my employer painting Cathey's Valley Baptist Church, Valley Children's Hospital fund raiser volunteer. I have enclosed a few personal and employment reference for your review including letters that verify my community service. I have also enclosed a recent Department of Justice clearance and a DMV printout demonstrating good citizenship and moral character.

2. Overall Character of Service, as to my"suitability of service" the proof is in my actual service record. During my active duty, I had no record of NJP's, no record of reprimands or admonishments. I had no record of misconduct, disrespect or any other sort of inappropriate behavior. Although my offense was serious, it was isolated. I do not intend to belittle or minimize the seriousness of an unauthorized absence from military duty, however I am asking you to consider the overall manner in which I conducted myself during my active service. I am asking you to consider that it was extreme family circumstances which lead to my actions and not a general disrespect or contempt for the Marine Corps. Frankly, I loved being a Marine, but I loved my wife even more, and I am asking you to understand the conflict that this produced in me as such a young man.

3. Convenience of the Government: Hardship, in addition to a "Characterization" upgrade, I am also requesting that the reason for discharge be reconsidered and changed to "Convenience of the Government: Hardship". The current reason listed on my DD214 states, "Conduct triable by court-martial ( requesting for discharge for the good of the service). This statement of my DD214 has produced severe prejudice form potential employers. At 19 years of age, my youth and immaturity did not allow me to foresee the full ramifications of this sort of discharge. I couldn't see myself at 30 years old as a daddy, having this hang over me as a roadblock to financial and career success. This "reason for discharge" paints an inaccurate picture of what really occurred while I was in the Marine Corps. With deep regret and heart felt apology, I take fully responsibility for what I did wrong and I ask you to mercifully reconsider all the facts and circumstances that lead to my unauthorized absence. It was family hardship directly related to and aggravated by my military service which lead to my actions. My wife was apprehensive about my entering the Marine Corps from the beginning. I reassured her that this was the best thing to do and that everything would work out fine. She reluctantly supported me. After leaving for active duty, the strain on our young marriage really began to take its tol. I believe that if I could have taken a leave or been reassigned to a reserve unit that the marriage could have been saved. In seeking help from my superiors, I was given no guidance in how to make a request for compassionate reassignment and really had no idea that there was such a thing. As described earlier, I made requests for assistance to numerous personnel, looking for guidance and was given none. When it seemed that I had exhausted all possible sources of help, I believed in my immaturity that the best thing to do was to leave and go home and try to work on our relationship. This was an error in judgement based on youth and extreme circumstances. I understand now that the Department of Defense recognizes that there are circumstances which warrants such action as administrative discharge and compassionate reassignment and has laid out criteria for such actions being taken. I believe that I would have qualified for this type of action had I been aware of the proper channels. I believe that I made every effort to seek out those channels but I was given no directions.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Letter from Applicant (3pgs)
Copy of DD Form 214
Criminal Record Letter
Volunteer Letter from Office of The Sheriff Coroner
Letter of Approval for Volunteer Firefighter
Letter of Commendation for participation in Annual Fresno Bee Kid's Day paper sale
Copy of Certificate of Completion (Basis Police Academy)
Copy of Certificate of Achievement (250 hours S.C.O.P.E participation)
Employment/Character Reference Letter (3)
Character Reference Letters (6)
Copy of Driving Record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                890505 - 900318  COG

 Period of Service Under Review :
Date of Enlistment: 900319               Date of Discharge: 910516

 Length of Service (years, months, days):

         Active: 00 08 09
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 11                        AFQT: 61

 Highest Rank: PVT

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.10 (1)             Conduct: 2.1(1) [Extracted from SJA's message]

 Military Decorations: None

 Unit/Campaign/Service Awards: Rifle Expert Badge

Days of Unauthorized Absence: 173

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

UNDER OTHER THAN HONORABLE CONDITIONS/Conduct triable by courts-martial (request for discharge for the good of the service), authority: MARCORSEPMAN Par. 6419.

 Chronological Listing of Significant Service Events :

900805:  To UA.

910112:  From UA.

910125:  To UA.

910205:  From UA,

 910206:  Pre-trial confinement

910402:  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 Specs), Spec 1: UA from 900805-910113, Spec 2: UA from 910125-910206, Article 134: Break restriction.

910430:  SJA review determined the case sufficient in law and fact.

910503:  GCMCA [Commanding General] 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 910516 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 and reason for discharge was proper and equitable (D and E).

 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. The applicant stated he understood the elements of the offenses with which he was charged. He admitted he was guilty of violating Article 86: Absence without leave and Article 134: Breaking restriction.
In the applicant’s issue 1, 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. 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, can be considered. In determining whether a case merits a change based on post-service conduct, the NDRB considers the length of service, length of time since discharge, the applicant's record of community service, employment, conduct, educational achievements, and family relationships in order for consideration for clemency based on post-service conduct. Taking these factors into consideration, the Board finds that the discharge was accurately characterized as other than honorable. 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.

In the applicant’s issue 2, the applicant implies that a permissive doctrine exists whereby one in the military is allowed a “single misdeed”. The Board believes that the applicant is confusing this with the civilian world wherein some offenses are treated with leniency because they are a first time incident on an otherwise clear record. No such leniency exists in the military. The applicant is responsible for his actions and must accept the consequences of his misdeeds. The Board will not grant relief on the basis of this issue.

 The applicant requested in issue 3 that the reason for his discharge be changed to “hardship”. The NDRB, under its responsibility to examine the propriety and equity of a discharge, will change the reason for discharge if such a change is warranted. The service record clearly documents repeated offenses committed by the applicant which resulted in the applicant’s discharge. On 910402, the applicant requested separation in lieu of a trial by court martial. No other Narrative Reason for Separation could more clearly describe why the applicant was discharged. To change the Narrative Reason for Separation would be inappropriate. No relief will be granted based on this issue.

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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