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USMC | DRB | 2002_Marine | MD02-00890
Original file (MD02-00890.rtf) Auto-classification: Denied


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


ex-PFC, USMC
Docket No. MD02-00890

Applicant’s Request
The application for discharge review, received 020606, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested a personal appearance discharge review before a traveling panel closest to Tupelo, MS or Memphis, TN. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter to the Applicant, was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington, D.C. area. The NDRB also advised that the Board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030228. 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/IN LIEU OF TRIAL BY COURT-MARTIAL, authority: MARCORSEPMAN Par. 6419.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


 Issues, as submitted

1. I only left the Marines b/c I was not being allowed to go. I had used all of my leave for the purpose of going home & getting married & also to handle some concerns of my mother. I thought I had fixed the problem. But I didn't. 2 weeks later back at Lejune I talk to a friend of mine name P_ & she said it still going on. What was happening was my mother’s husband was beating her up severely & also hospitalizing her. I'm the only family she had at the time to help her at all. I tried all I knew how to, to try & get some kind of leave to go home to her. They just weren’t going for it. I requested mass to my CO & even spoke w/the Sgt Maj at Btn. Still wasn't happening. So I went U.A. I didn't plan to be gone that long but stuff happened that I didn't expect such as my wife getting pregnant & she needed to be taken care of. But I am going to enclose some medical bills before & after the fact showing the incidents. Medical bills sum up to around $200,000.
 At the time of me being gone. I succeeded in making him leave & talking out of nothing, stupid decisions. 3 months later he broke in & set her on fire. I woke up we fought. I win. I have to run her out the back window b/c the front is already coming down. So if I wouldn't have been there then she'd have died. Now she has no income & living at housing Auth., food stamps & me fighting for her disability. Thank you.
I (Applicant) would like to sincerely apologize for my actions. I'm positive that there were other ways to handle my situation. But the stress & worry & not knowing had me act in a way that I shouldn't have for that I apologize. I truly miss the Marines & the pride & proudest that I carried within myself & from my family, and now I would like a chance to correct my wrong and take a chance at my career & pride. Since I have been out by the same month I had me a job at Sam's Club. Then I worked for Premium Quality meats as a Sales Rep since August & now my experience has led me to selling houses for Southern Housing (address and phone number deleted)
I have made a lot of progress w/in myself & for my life. Now I would like the chance to take it farther. I have applied for financial aid to go to college & am supposed to start college in the fall for me Bachelors. And if it were possible I'd love to be able to earn my MGIB back. I think I owed only one more payment for it. It said I didn't at all but if my LES are checked theses it will show. Also I would like the chance to give the miliary & myself another shot so that I may serve my country. Possibly through the National Guard or Army. Please consider my request w/open heart & understanding. Sincerely

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214 (Member 1 and 4)
Sixty-six pages from Applicant's mother (medical and police files)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
          Inactive: None found in service record
Period of Service Under Review :
Date of Enlistment: 981113               Date of Discharge: 010625

 Length of Service (years, months, days):
         Active: 02 07 13         Does not exclude lost time
          Inactive: None
Age at Entry: 18                          Years Contracted: 4

 Education Level: 11                        AFQT: 33
Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: 3.0 (5)                       Conduct: 2.4 (6)

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

 Days of Unauthorized Absence: 428
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT-MARTIAL, authority: MARCORSEPMAN Par. 6419.

 Chronological Listing of Significant Service Events :

991116:  NJP for violation of UCMJ, Article 92 (4 specs):
 Specification 1: Violate liberty policy by leaving without permission.
 Specification 2: Violate liberty policy by wearing civilian attire.
 Specification 3: Violate liberty policy by drinking while not of legal age.
 Specification 4: Violate liberty policy by staying out past established liberty hours.
 Violation of UCMJ, Article 86:
 Specification: Unauthorized absence from 2230, 990908 to 0945, 990909.
Awarded forfeiture of $150.00 per month for 1 month, correctional custody for 7 days. Forfeiture suspended for 6 months. No indication of appeal found in service record.
991206:  Applicant unable to serve punishment of 7 days correctional custody due to medical condition. Punishment transferred to 12 days restriction and 12 days extra duty.
000110:  Counseled for deficiencies in performance and conduct. [Lack of integrity and disobedience to the medical officer’s instructions for treatment. Applicant is not to be playing basketball while on 30 day light duty status. Had a personal check in the amount of $65.00 returned from MCCS due to insufficient funds. MCCCS also charged $25.00 for the returned check. Applicant had almost a month to pay MCCCSA and has failed to do so.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000303:  Applicant declared a deserter on 000303 having been an unauthorized absentee since 0700, 000203.

 000830:  Applicant married.
000915:  Applicant apprehended by Lee County Police Department on 000915 (1500).
010406:  Applicant released from civil authorities.
010406:  Applicant to confinement.

 010606:  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: Unauthorized absence 0700, 000203 to 1500, 000915 (225 days/apprehended).
010622:  SJA review determined the case sufficient in law and fact.
010625:  Applicant released from confinement.

 010625:  GCMCA [Commander, Marine Corps Base, Camp Lejeune] 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 010625 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, having consulted with counsel certified under UCMJ Art 27b, requested discharge for the good of the service to escape trial by court- martial on 010606. 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 Board found that the documentation and statements provided by the Applicant are not sufficient to warrant an upgrade to this characterization of service. Relief denied.
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 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 P1900.16E), 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 “ 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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