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USMC | DRB | 2002_Marine | MD02-00560
Original file (MD02-00560.rtf) Auto-classification: Denied


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


ex-PFC, USMC
Docket No. MD02-00560

Applicant’s Request
The application for discharge review, received 020318, requested that the characterization of service on the discharge be changed to general/under honorable conditions. 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 021217. 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.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


 Issues, as submitted

1. I was accused of stealing - beat up by 3 SSgt. 6 Afro American & 5 other people. I got out because my First Sgt would not let me transfer out of the Co. My lawyer Lt. H_ (Huron Camp) tried to get my CO Fox 2-1 to transfer me out also no go so I let them kick me out. I was doing well until I was beat up. I now suffer from PTSD night sweats-night terrors and am always paranoid someone’s out to get me. I need the change cusp I did not want to end my career as a Marine so soon. I was forced out.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Statement from Applicant dated February 20, 2002
Authorization and consent to release information to the Department of Veterans Affairs (VA) dated February 21, 2002
 Information in support of claim for service-connection for post-traumatic stress disorder (PTSD) undated
Copy of DD Form 214 (Member 1)
Letter to Board from Veteran Outreach Counselor dated April 22, 2002

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
          Inactive: None
Period of Service Under Review :
Date of Enlistment: 860910               Date of Discharge: 880225

 Length of Service (years, months, days):
         Active: 01 05 16
          Inactive: None
Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 32
Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: 4.3 (4)                       Conduct: 4.0 (4)

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

 Days of Unauthorized Absence: 64
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 :

870507:  NJP for violation of UCMJ, Article 92:
 Specification: Having an unauthorized guest in BEQ room.
 Violation of UCMJ, Article 109:
Specification: Wrongful destruction of government property, to wit: burning a hole in BEQ's chair.
 Awarded forfeiture of $172.00 per month for 1 month, restriction for 14 days. Not appealed.
870910:  Counseled for deficiencies in performance and conduct. [Immaturity, lack of self confidence.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
871109:  Counseled for deficiencies in performance and conduct. [Considered a flight risk and will be confined for any UA periods.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

 871215:  Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ), Article 86 (3 specs): (1) Failure to go to appointed place of duty on 1600, 10 Sep 87, (2) Absent from unit on 0731, 3 Sep 87 until 0530, 10 Sep 87, (3) Absent from unit 2100, 10 Sep 87 until 0730, 6 Nov 87 (57 days).

880111:  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 than honorable conditions. The Applicant admitted guilt to the following violations of the UCMJ, Article 86 (3 specs): (1) Failure to go to appointed place of duty on 1600, 10 Sep 87, (2) Absent from unit on 0731, 3 Sep 87 until 0530, 10 Sep 87, (3) Absent from unit 2100, 10 Sep 87 until 0730, 6 Nov 87 (57 days).
880126:  SJA review determined the case sufficient in law and fact.

 880128:  GCMCA [Commanding General, 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.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

 Discussion

The Applicant was discharged on 880225 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. The Applicant failed to provide sufficient documentation to support his allegations that he was treated unfairly, and that fear for his personal safety should mitigate his unauthorized absence that resulted in charges preferred to a special court-martial. The Applicant admitted guilt to the charges against him and certified a complete understanding of the negative consequences of his actions and that characterization of service would be under other than honorable conditions. The Board found nothing in the documentation reviewed that mitigates his misconduct. Relief denied.
The Applicant’s discharge characterization accurately reflects his service to his country. Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity is evident 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 not warranted.

The Applicant 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. Representation at a personal appearance hearing is recommended but not required.

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.
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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