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USMC | DRB | 2002_Marine | MD02-00040
Original file (MD02-00040.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD02-00040

Applicant’s Request
The application for discharge review, received 010926, 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020529. 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/INVOL DIS (BOARD WAIVED (MISCONDUCT) AWOL, authority: MARCORSEPMAN Par. 6210.6.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 In despite of last week’s tragedy, if an opportunity rose for me to serve my country, I would gladly accept it. I am now 29 years old. At 21, I joined the Marines and disgraced myself and my family. I would join again (if allowed) to reverse that. Thank you! Signed Applicant 1. My ability to serve was impaired due to my youth and immaturity. I rushed into a marriage right after boot camp, which in return, turned out to be my biggest nightmare. 2. My ability to serve was impaired because of marital, personal, and financial problems. While stationed in camp Pendleton, CA., on a day-today basis it was very difficult for me to go work, then come home and deal with a wife, who at the time was homesick from her family in Chicago and who also was struggling to find employment in the area surrounding Pendleton. We verbally fought every other day about our personal problems which caused me to go AWOL. I was aware of counseling and the help that was available to deal with my personal problems but it was my immaturity and stubbornness that refused it. 3. Clemency is warranted because it is an injustice for me to continue to suffer the adverse consequences of a bad discharge. I was refused as a candidate for several federal and city jobs that I believe I could have had of it wasn't for the discharge I received from the Marine Corps.
 4. I have been a good citizen since my discharge from the Marine Corps. I have been divorced since my released from the corps and been working steadily. I have a wonderful job as a production supervisor for a large, known bakery and looking forward to move up the ladder. I also have a 13- year old son that I am responsible for and whom I feel will be ashamed (as well as I am) if he knew of the discharge I received. I would like for him to be proud of his father.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Letter of Employment and Character Reference from C_ S_, dtd May 22, 2001
Copy of DD Form 214
14 service record pages

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                930514 - 930518  COG

 Period of Service Under Review :
Date of Enlistment: 930519               Date of Discharge: 941212

 Length of Service (years, months, days):

         Active: 01 06 24 (Doesn't exclude lost time.)
         Inactive: None

 Age at Entry: 21                          Years Contracted: 4

Education Level: GED              AFQT: 52

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (3)              Conduct: 4.2 (3)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, Rifle Marksman Badge

Days of Unauthorized Absence: 72

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

UNDER CONDITIONS OTHER THAN HONORABLE /INVOL DIS (BOARD WAIVED) (MISCONDUCT) AWOL, authority: MARCORSEPMAN Par. 6210.6.

 Chronological Listing of Significant Service Events :

940606:  Unauthorized absence since 0730, 940606.

940618:  Surrendered at 1500 (12 days).

 940630:  NJP for violation of UCMJ, Article 86: on or about 0730, 940620 until 0730, 940621, without authority absent himself from appointed place of duty; violation of UCMJ, Article 86: on or about 0730, 940606 until 1500, 940618, without authority absent himself from his unit; violation of UCMJ, Article 92: on or about 0730, 940620 violate a lawful order when ordered to report to the company office; violation of UCMJ, Article 107: on or about 940607, with intent to make to SSgt A_, an official statement, to wit: "I am in Alabama" which statement was false in that he was really in Chicago, and was then known by the said SSgt to be so false.
 Awarded forfeiture of $450.00 per month for 2 months (suspended for 6 months), restriction and extra duties for 45 days and reduction to E-2. Not appealed.
940630:  Unauthorized absence since 1801, 940630.

940730:  Declared deserter as having been UA since 1801, 940630.

 940802:  Counseled for deficiencies in performance and conduct [failure to follow military rules and regulations; persistence in going UA, the most recent of which was on the same day of being placed on restriction for a previous UA for which the battalion commander administered non-judicial punishment on 30 Jun 94; domestic violence and disputes with spouse resulting in her complaining to the Company First Sergeant in person that you had beaten her with your fists; making false official statement while UA]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940802:  Placed in pre-trial confinement.
940829:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86: on or about 940630, without authority, absent himself from unit and remain so absent until on or about 940802.
         Finding: to Charge I and the specification thereunder, guilty.
         Sentence: Confined for 30 days, reduced to E-1.
         CA action 940908: Sentence approved and ordered executed except for the reduction is disapproved. Administrative credit was given for 28 days pretrial confinement, 940802-940829.
940829:  Returned to full duty.

 941019:  Applicant notified of intended recommendation for discharge under condition other than honorable by reason of misconduct due to the commission of a serious offense as evidenced by being absent without leave from 940630 until 940802.
941019:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
941026:  Commanding officer recommended discharge under condition other than honorable by reason of misconduct due to the commission of a serious offense as evidenced by his being absent without leave from 940630 until on or about 940802.

941130:  SJA review determined the case sufficient in law and fact.

941130:  GCMCA [CG, 1 st FSSG] directed the applicant's discharge under conditions other than honorable by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 941212 under conditions other than honorable for misconduct due to the commission of a serious offense (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 and 2. The Board found that the applicant’s age, education level, and test scores qualified him for enlistment. While he may feel that his immaturity, youth, and marital 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 3. The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested in the issue. The Board’s charter limits its review to a determination on the propriety and equity of the discharge. In the applicant’s case the Board could discern no impropriety or inequity and therefore considered the applicant’s 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. Relief denied.

 Issue 4. 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. Marine Corps Separation and Retirement Manual, ( MCO P1900.16D), effective 890627 until 950817, Paragraph 6210, Misconduct.
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 92, failure to obey a lawful general order; Article 107, false official statement.
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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