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USMC | DRB | 2001_Marine | MD01-00368
Original file (MD01-00368.rtf) Auto-classification: Denied


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


ex-PVT, USMC
Docket No. MD01-00368

Applicant’s Request
The application for discharge review, received 010202, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a personal appearance before a traveling panel closest to Tampa, FL. The applicant listed the Veterans of Foreign Wars as the representative on the DD Form 293. The applicant was informed the Board does not travel, all hearings are held in Washington, DC, at the Washington Navy Yard. Subsequent to the application, the applicant converted to a record review.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010822. 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/Separation in lieu of trial by court-martial, authority: MARCORSEPMAN Par. 6419.
A documentary discharge review was conducted in Washington, D.C. on XXXXXX. 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.
If appropriate add the following:
The NDRB did note an administrative error on the original DD Form 214. Block 28, Narrative Reason for Separation should read: “_____________” vice “__________”. The original DD Form 214 should be corrected or reissued as appropriate.






THIS IS THE CORRECT SHELL FOR A SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL, EFFECTIVE 15 APR 84 UNTIL 26 JUN 89. There is not a shell for SIL8707 because P1900.16C, Ch 4, effective 870729, was not applicable to par. 6419.

THE CORRECT NARRATIVE REASON FOR SEPARATION FOR SPD CODE KFS1 IS “Separation in lieu of trial by court-martial”. (Listed on page 1-50 of MCO P1900.16C, Change 2, effective 15 Apr 84)

A general discharge is written “ UNDER HONORABLE CONDITIONS (GENERAL)” (See MCO P1900.16C, page 1-37, effective 1 Oct 82)

An under other than honorable conditions discharge is written “UNDER CONDITIONS OTHER THAN HONORABLE” (See MCO P1900.16C, page 1-37, effective 1 Oct 82)


PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues

1. Violation Art. 86 UCMJ: UA. The evidence indicates that the applicant stayed away to take care of his sick mother and siblings. IAW Secnav Instruction 5420.174C of 22 August 1984 (MDR 1984), enclosure (1), chapter 9, paragraph 9.3, Equity of discharge, we ask the Board to consider the following factors:
•         Clemency is warranted because the applicant is suffering adverse consequences of his other than honorable discharge.
•         We ask the Board to consider the applicant's case IAW SECNAV Instruction 5420.174C of 22 August 1994 (MDR 1984), enclosure (1), chapter 9, paragraph 9.2, Propriety of Discharge.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214 (3 copies)
Copy of DD Form 149
 Copy of separation/enlistment voucher dated June 3, 1987
 Copy of promotion to Private First Class dated August 1, 1985
Letter to Board for Corrections of Naval Records from applicant dated November 8, 2000
 Three pages from applicant's service record
 Letter of recommendation dated October 5, 1989
Character reference dated November 29, 1989
 Character/job reference dated October 8, 1989
 Character reference dated April 21, 1986
Character/job reference dated October 6, 1989
 Letter of recommendation dated November 27, 1989
 Letter from applicant's mother dated October 24, 2000
Letter from applicant's mother dated October 31, 2000
 Character/job reference dated October 4, 1989
 Letter from Deland Junior High School dated January 8, 1980 (2 copies)
 Copy of a thank you letter dated April 6, 1990
 Letter from applicant's mother dated April 13, 1986
Character reference dated April 28, 1986
 Letter from applicant's mother dated April 17, 1986
 Character reference dated April 27, 1986
 Character reference dated April 15, 1986
 Recommendation letter dated April 21, 1986
Character/job reference dated July 2, 1987
 Copy of promotion notice dated August 25, 1987
 Letter from manager, Aircraft Service International, Inc. dated May 25, 1988
 Character reference dated June 18, 1984
 Copy of applicant's resume (4 copies)
Copy of applicant's driver's license
 Copy of applicant's CDL license
 Copy of member identification card
Copy of applicant's social security card
 Letter dated March 9, 1988 and copy of resume
Character reference, undated
Copy of applicant's mothers' medical record (58 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
          Inactive: USMCR(J)                840720 - 850225  COG

 Period of Service Under Review :
Date of Enlistment: 850226               Date of Discharge: 870603

 Length of Service (years, months, days):
         Active: 02 03 05
          Inactive: None
Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 77
Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: 4.0 (6)                       Conduct: 3.1 (7)

 Military Decorations: None
Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 82
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

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

 Chronological Listing of Significant Service Events :

851231:  NJP for violation of UCMJ, Article 91:
 Specification: Disrespectful toward Corporal on 1845, 26Dec85.
 Awarded forfeiture of $300.00 per month for 2 months, restriction for 45 days, reduction to Pvt. Forfeiture of $150.00 per month for 2 months, restriction for 15 days and reduction to Pvt suspended for 6 months. Not appealed.
860323:  Vacate suspended forfeiture of $150.00 for 2 months, restriction for 15 days awarded at CO's NJP dated 31Dec85.
860512:  Special Court-Martial.
          Charge I: violation of the UCMJ, Article 121(2 specifications):
         Specification 1: Steal one U.S. Armed Forces Identification Card on 12Mar86.
         Specification 2: Wrongfully appropriate one U.S. Treasury check a value of $3919 on 13Mar86.
         Findings: to Charge I and specifications thereunder, guilty.
         Sentence: Forfeiture of $426.00 per month for 6 months, confinement for 6 months, reduction to Pvt.
         CA 860610: Sentence approved and ordered executed. Confinement in excess of 90 days suspended for 1 year.

860929:  Counseled for deficiencies in performance and conduct. [Hardship discharge, civilian work, liberty boundaries, disrespect to superiors, and residing in barracks]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

861103:  Applicant to unauthorized absence 0801, 3Nov86.

870206:  Applicant apprehended by civil authorities.

870223:  Applicant released from civil authorities.

870224:  Applicant delivered under guard.

870225:  Applicant from unauthorized absence.

870226:  Applicant to confinement.

870303:  Vacate suspended confinement awarded at Special Court Martial dated 860512.

870506:  Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 86: Unauthorized absence (UA) from 3Nov86 to 6Feb87 (95 days/apprehended); Article 89: Disrespect toward Captain on 16Oct86, to wit: “You are an asshole for bothering me"; Article 92: Violate a lawful general regulation on 19Oct86, to wit: wrongfully disembarking his vehicle while wearing his U.S. Marine Corps utility uniform off-station; Article 134 (2 specs): Wrongfully and unlawfully make and deliver a check knowing did not have sufficient funds for payment on 29Oct86 and 30Oct86, total of $50.00.

870513:  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 all offenses.
870527:  SJA review determined the case sufficient in law and fact.

 870528:  GCMCA [Commanding General, 2d Marine Aircraft Wing, Cherry Point, NC] 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.

870601:  Applicant from confinement.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 870603 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).
Issue 1. A review of the official record indicates that the applicant was separated at the member’s request for an administrative discharge in lieu of trial by court-martial, and not just because of his UA status while caring for his ill mother. The applicant was convicted at Special Court-Martial on 860512 for stealing an ID card and a US government check. Six months later he faced another trial by court-martial for writing worthless checks, disrespect to a commissioned officer, wearing the utility uniform off base, and the above mentioned UA. The applicant was briefed on 860929 on how to request a Hardship Discharge. The applicant stated he understood the elements of the offenses with which he was charged. He admitted he was guilty of violating the Articles of the UCMJ under which he was charged. The applicant’s misconduct, warranting separation for misconduct due to a pattern of misconduct is clearly documented in the service record and could have resulted in the award of a Bad Conduct Discharge by a Special Court-Martial. The applicant’s counsel advised him of this possibility and the applicant chose to request separation under other than honorable conditions to escape a punitive discharge. The Court-Martial convening authority accepted the applicant’s request and he was discharged as he requested. No other characterization or Narrative Reason for Separation could more clearly describe why the applicant was discharged. To change the characterization of service would be inappropriate and the applicant’s dissatisfaction with the nature of his discharge does not provide a legitimate basis to alter history. Relief denied.
The VFW states that clemency is warranted because the applicant is suffering adverse consequences of his characterization of service. The applicant signed a statement on 13 May 1987 that stated he fully understood the adverse nature and possible consequences of such a characterization of service. When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as honorable. 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. T he applicant’s service was marred by the award of nonjudicial punishment (NJP) and for offenses triable by court-martial on two occasions. The applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful disobedience of the orders and directives which regulate good order and discipline in naval service, and falls short of that required for an honorable characterization of service. An upgrade to honorable would be inappropriate. 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. 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. Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge. While the Board recognizes that the applicant put forth an effort to show good civilian conduct, these efforts need to be more encompassing than those provided. There are no letters of recommendation from non-family members more recent than 1990 and no indication of employment beyond 1994. The applicant should have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities in order for consideration for relief 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.




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; Article 89, disrespect toward a superior commissioned officer; Article 91, insubordinate conduct toward a noncommissioned officer; Article 92, failure to obey regulations; Article 121, larceny; and Article 134, disorderly conduct.
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 “ afls10.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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