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USMC | DRB | 2001_Marine | MD01-00574
Original file (MD01-00574.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD01-00574

Applicant’s Request
The application for discharge review, received 032701, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a personal appearance discharge review before the board in the Washington National Capital Region. The applicant listed the Veterans of Foreign Wars as the representative on the DD Form 293. In the acknowledgement letter to the applicant, the applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 010906. 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: GENERAL (UNDER HONORABLE CONDITIONS)/IN LIEU OF TRIAL BY COURT-MARTIAL, authority: MARCORSEPMAN Par. 6419.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. Under current standards, I would not have received the type of discharge I did.

2. My average conduct and efficiency rating/behavior and proficiency marks were good.

3. My record of promotion showed I was generally a good service member.

4. There were other act of merit.

5. I have been a good citizen before and after the discharge.

6. My record of AWOL UA indicates only minor of isolated offenses.

7. My ability to serve was impaired because of marital, and family, and child care problems.

8. Personal problems impaired my ability to serve.

9. Financial burden impaired my ability to serve.

10. I faced racial discrimination and that impaired my ability to serve.

11. My ability to serve was impaired because marines made fun of my national origin, and speaking ability.

12. My ability to serve was impaired because lower ranked marine denied my order because of my nationality or my origins.

13. I was UA because I felt unsecured, my life was in danger.

14. I have tired to apply for humanitarian transfer, but I was unfairly denied.

15. My discharge was improper because the command did not follow the discharge regulation.

16. I really wanted to serve, but I faced many obstacles that impaired my ability: discrimination, personal problems, financial problems, unfriendly jokes etc, nonetheless, physically and mentally, I fitted to serve in the military. Finally my dream has been taken away from me. Can I receive the permission to join the military reserve?

17. We ask that you review this case for fairness and equity and that you change the discharge as requested by the applicant.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                980429 - 980518  COG

 Period of Service Under Review :
Date of Enlistment: 980519               Date of Discharge: 000421

 Length of Service (years, months, days):

         Active: 01 11 03
         Inactive: None

 Age at Entry: 34                          Years Contracted: 4

 Education Level: 13                        AFQT: 67

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (2)                       Conduct: 4.4 (2)

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 134

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

GENERAL (UNDER HONORABLE CONDITIONS)/IN LIEU OF TRIAL BY COURT-MARTIAL, authority: MARCORSEPMAN Par. 6419.

 Chronological Listing of Significant Service Events :

000225:  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: Unauthorized absence 0731, 15Sep99 to 2130, 26Jan00 (134 days/apprehended).

000812:  SJA review determined the case sufficient in law and fact.

000812:  GCMCA [Commanding General, Marine Corps Base, Quantico, VA] 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 general (under 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 000421 general (under 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).

Issues 1, 4, 10, 12, 13, 14, 15. The Board found no evidence in the official records or in the documentation provided by the applicant to support an inequity or impropriety of his discharge by reason of current standards, other acts of merit, racial discrimination, subordinates refusing the applicant’s orders, the applicant’s life was in danger, unfair denial of a humanitarian transfer, or failure of the command to follow proper separation proceedings. Relief denied.

Issues 2, 3, 6. The Board agrees that the applicant had good evaluations and was promoted on time throughout his tenure, but his performance prior to the unauthorized absence doesn’t mitigate the seriousness of the offense. The offense with which the applicant was charged and admitted guilt on 000225 could have led to a punitive discharge had the convening authority not accepted the applicant’s request for separation in lieu of trial by court-martial. The discharge was proper and equitable. Relief denied.

Issue 5. T here is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in civilian life, subsequent to leaving the service. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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. 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. Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct. The applicant did not provide sufficient documentation to warrant an upgrade to his discharge. He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge. The applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Legal representation at a personal appearance hearing is highly recommended but not required. Relief denied.

Issues 7, 8, 9, 11. The Board found that the applicant’s age, education level, and test scores qualified him for enlistment. While he may feel that his personal and family problems were factors 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.

Issue 16. Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into any branch of the Armed Forces. Reenlistment policy of the naval service is promulgated by the Commander, Navy Personnel, Pers 814, 5720 Integrity Drive, Millington, TN 38055, and the Commandant, United States Marine Corps, Code MMPE-5, Washington, DC 20380-3001. Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment. A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter. Relief is therefore denied.

Issue 17. The applicant chose to request separation under honorable conditions (general) to escape a punitive discharge. The applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the applicant’s enlistment. Relief denied.



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 P1900.16E), effective
18 Aug 95 until present.

 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 “ 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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