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USMC | DRB | 2002_Marine | MD02-00704
Original file (MD02-00704.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD02-00704

Applicant’s Request
The application for discharge review, received 020415, 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 030424. 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/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.6.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


 Issues, as submitted

1. To whom it may concern,
I P_ D. M_ am writing to you on my own behalf.
 The reasons for my writing you is to get my military discharge upgraded to a General discharge under honorable conditions. The first reason I want to give is, because I feel that there was a misunderstanding between myself and the faculty & staff that made them agree to the terms of a discharge of other than honorable. There is only one reason for it all, and that is my wife was pregnant and she was having complications with the pregnancy and she needed more support and love than she was actually getting at the time. She would have to go to the emergency room and there was no one there with her, and I wanted to be there. The reason I wasn't there was, because I hadn't accumulated any leave time so I had to wait until I did. I was acting a bit immature, but I learned that there is a place and a time to do what it was I was doing. I really need and want to be a man who serves his country and I will do whatever it is that I need to do in order to be the best at whatever you ask of me. Please, take into consideration the fact that I am one who is coming to you and that you aren't coming to me. I am begging for a second chance, and I do know that second chances don't come easy. Thank you for giving me the opportunity the first time, and even if there is no second chance, I am grateful.

2. Like I said I my last application I was being immature & I have definitely learned from those mistakes of mine. Please, I don't know how to do anything else but be a soldier, civilian life is of a lower caliber.

I also got a response from you guys as well dated March 7, 2003 stating that my consideration has been delayed because the board has been unable to obtain a copy of my Record of Trial dated March 28, 2000. I never went to court, I was never court-martialed. I was NJP'd and at the time I was asked if I wanted to stay in the military and I chose to stay another 4 or 5 months. Never once did I go to trial or court. There is no record showing that I did.

Please take into consideration the fact that I need the military and I made immature decisions in the past. I apologize and I'm asking, well begging for a second chance to prove to you all as well as to myself that I can achieve higher military rank & status.

 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: USMC              None
         Inactive: USMCR(J)                980109 - 990216  COG

 Period of Service Under Review :
Date of Enlistment: 990217               Date of Discharge: 000802

 Length of Service (years, months, days):

         Active: 00 10 16
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 42

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 2.1 (3)                       Conduct: 1.6 (4)

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 213

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.6.

 Chronological Listing of Significant Service Events :

990915:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0001, 990702 to 1130, 990703 (1 day/S); Unauthorized absence from 0730, 990805 to 1430, 990825 (20 days/S).
         Award: Forfeiture of $223.00 pay per month for 1 month, restriction and extra duty for 14 days. No indication of appeal in the record.
991015:  Declared a deserter.

 000522:  NJP for violation of UCMJ, Article 86: Unauthorized absence 1701, 990915 to 1936, 000325 (192 days). Apprehended by Chicago Police Department, Chicago, IL 60605.
         Award: Forfeiture of $500.00 pay per month for 2 months, reduction to E-1. No indication of appeal in the record.
000623:  Counseled for deficiencies in performance and conduct. [Failure to be at appointed place of duty (morning formation) at 0700 on 000619, also failure to be at S-1 office (his work section) at 1300 on 000619.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000626:  Counseled for deficiencies in performance and conduct. [Failure to maintain military appearance (grooming) in that he did not shave for morning formation at 0700 on 000626.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000705:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense (desertion).
000705:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

000712:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. The factual basis for this recommendation was Private M_'s unauthorized absence from 990915 to 000325.

000726:  SJA review determined the case sufficient in law and fact.

000726:  GCMCA [Commander, Marine Corps Base, 3250 Catlin Avenue, Quantico, VA] directed the Applicant's discharge under other than honorable conditions 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 000802 under other than honorable conditions 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 and pregnant wife were factors that contributed to his actions, his record of unauthorized absences and desertion clearly reflect his 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. A conviction at a court-martial is not required for discharge under this provision, so the fact that his desertion did not result in a court-martial is not pertinent to this discharge. The NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces. 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 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 31 January 1997 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 “ 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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