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USMC | DRB | 2001_Marine | MD01-01099
Original file (MD01-01099.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD01-01099

Applicant’s Request
The application for discharge review, received 010820, 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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020320. 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

1. I served honorably in the Persian Gulf War from December of 1990 to July 1991 and received several medals, badges, and commendations.

2. During my time of service before the Gulf War and continuing after the Gulf War, I had severe marital problems and a child was born from myself and my wife at the time, coupled with problems adapting to military life, these incidents contributed to me going AWOL, which is the reason for my discharge.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Copy of unofficial transcript from Glendale Community College dated August 28, 2001
Employment verification dated August 29, 2001
Character reference dated September 8, 2001
Police record check for City of Phoenix dated September 7, 2001

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                890615 - 891204  COG

 Period of Service Under Review :
Date of Enlistment: 891205               Date of Discharge: 921231

 Length of Service (years, months, days):

         Active: 03 00 28
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 70

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.9 (9)                       Conduct: 3.4 (10)

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR with 2 Stars, Letter of Appreciation, SASM with 3 Stars, NDSM, CAR, KLM, NUC, JMU, HSM

 Days of Unauthorized Absence: 77

 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 :

900626:  Applicant to unauthorized absence 0531, 26Jun90.

900722:  Applicant from unauthorized absence 2250, 22Jul90 (26 days).

900809:  NJP for violation of UCMJ, Article 86:
 Specification: Unauthorized absence from appointed place of duty from 0630, 25Jun90 to 2250, 22Jul90 (27 days).
Awarded forfeiture of $405.00 per month for 1 month, restriction and extra duties for 45 days, reduction to Pvt. Forfeiture and reduction suspended for 6 months. Not appealed.
901106:  Applicant to unauthorized absence from 1301, 6Nov90.

901115:  Applicant from unauthorized absence at 2300, 15Nov90 (9 days).

901116:  Applicant to confinement.

 901116:  Counseled for deficiencies in performance and conduct. [Your constant abuse of authority. Immaturity; lack of discipline; and going UA/AWOL.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

 901128:  Applicant from confinement.

901206:  NJP for violation of UCMJ, Article 86:
 Specification: Unauthorized absence from 1300, 6Nov90 to 2300, 15Nov90 (9 days).
Violation of UCMJ, Article 92:
Specification: Disobeyed 1stSgt's order to report back to the Company while being unauthorized absence after the Marine said he would return on 7Nov90.
Awarded forfeiture of $362.00 per month for 1 month, restriction and extra duties for 45 days. Not appealed.
901211:  Vacate forfeiture and reduction awarded a CO's NJP dated 9Aug90.

910808:  NJP for violation of UCMJ, Article 86:
 Specification: Unauthorized absence from appointed place of duty on 0731-2115, 5Aug91.
Awarded forfeiture of $222.00 per month for 1 month, restriction and extra duties for 14 days. Not appealed.
920906:  Applicant to unauthorized absentee since 0800, 6Sep92.
921017:  Applicant from unauthorized absence 1205, 17Oct92 (41 days/surrendered).

921019:  Applicant to pretrial confinement.

921103:  Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 86: Unauthorized absence (UA) from 6Sep92 to 17Oct92 (41 days).

921112:  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 from 6Sep92 to 17Oct92.

921130:  SJA review determined the case sufficient in law and fact.

921202:  GCMCA [Commander, 1 st Marine Division (Rein) FMF] 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.

921216:  Applicant from confinement.

PART III – RATIONALE FOR DECISION AND PERTINENT

Discussion

The applicant was discharged on 921231 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 was proper and equitable (D and E).

Issue 1 and 2. The Board found that the applicant’s overall record and service during the Gulf War does not mitigate his misconduct. On 921112, the applicant requested separation in lieu of court-martial. He further certified a complete understanding of the negative consequences of his actions and that characterization of service would be under other honorable conditions. While he may feel that his personal problems at the time 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.

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. Additionally, there 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.




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 “ 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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