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USMC | DRB | 2002_Marine | MD02-00958
Original file (MD02-00958.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD02-00958

Applicant’s Request
The application for discharge review, received 020618, 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 030331. 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, as submitted

1. I C_ S_, being almost thirty two years of age, am trying to take the necessary steps in trying to turn my life around. I know at the time, that by no means, that I was any kind of a model soldier. At this time, I am trying to become a model citizen, by this I mean to attempt and give my full attention to school, and doing my humanly best. Please consider upgrading my discharge, and allowing this to happen. Thank you.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                871013 - 880627  COG

 Period of Service Under Review :
Date of Enlistment: 880628               Date of Discharge: 921207

Length of Service (years, months, days):

         Active: 03 07 15 (Does not exclude lost time)
         Inactive: None

 Age at Entry: 17                          Years Contracted: 4

Education Level: 12                        AFQT: 67

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.6 (14)                      Conduct: 3.6 (13)

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, NDSM

 Days of Unauthorized Absence: 238: (28)890717-890414; (207)910903-920430;
          (3)920817-920820
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 :

890717:  Applicant to unauthorized absence this date; from UA status on 890414 (28 days).

890830:  Applicant not recommended for promotion to E-3 for September 1989 promotion period due to poor judgment, lack of responsibility, and deficient attitude.

890908:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86: Specification: Unauthorized absence from 890717 to 890814 (28 days). Charge II: violation of the UCMJ, Article 87: Missing movement thru design on 890717.
         Finding: to Charge I and the specification thereunder, guilty. To Charge II and the specification thereunder, guilty.
         Sentence: $300.00 fine, confinement at hard labor for 28 days, reduced to E-1.
         CA action 890908: Approved and ordered executed.
901102:  Counseled for deficiencies in performance and conduct (Lack of financial responsibility by not maintaining sufficient funds in the Applicant's checking account. Applicant also informed that a paycheckage of $120.35 for the dishonored check will be deducted from his payday payment of 901201). Sources of assistance provided, disciplinary and discharge warning issued.

910328:  Counseled for deficiencies in performance and conduct (Unauthorized use of a phone card). Sources of assistance provided, disciplinary and discharge warning issued.

910405:  NJP for violation of UCMJ, Article 86: At Camp Lejeune, NC, at or about 0001 on 910323, failed to go at the time prescribed to BLT Motor Pool for assigned guard.
         Award: Forfeiture of $197.00 pay per month for 1 month, restriction and extra duty for 14 days. No indication of appeal in the record.

910521:  Applicant not recommended for promotion to E-3 for the May and June 1991 promotion period due to recent nonjudicial punishment.

910721:  Applicant not recommended for promotion to E-3 for the August 1991 promotion period due to recent nonjudicial punishment.

910903:  Applicant to unauthorized absence this date; declared a deserter at 0701 on 910903.

920430:  Applicant surrendered to military authorities on at 1415 on 920427 in Gainesville, Florida. Returned to military control at 0945 on this date (207 days). Retained.

921010:  Charges preferred to special court-martial for violation of UCMJ Article 86 Unauthorized absence (5 specification) and UCMJ Article 134 Breaking restriction.
921021:  Applicant, having consulted with counsel certified under UCMJ Article 27(b), 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: ( 5 Specifications ), Specification 1 : Did at or about 2000 on 920907, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: restriction muster at Building HP118; Specification 2 : Did at or about 2145 on 920907, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: restriction muster at Building HP118 ; Specification 3 : Did on or about 920817, without authority, absent himself from his unit, to wit: 1 st Battalion, 8 th Marines, 2d Marine Division, located at Camp Lejeune, NC, and did remain so absent until on or about 920820 (3 days); Specification 4 : Did on or about 920826, without authority, absent himself from his unit, to wit: Headquarters and Service Company, 1 st Battalion, 8 th Marines, 2d Marine Division, located at Camp Lejeune, NC, and did remain so absent until on or about 920827; Specification 5 : Did on or about 910903, without authority, absent himself from his unit, to wit: 1 st Battalion, 8 th Marines, 2d Marine Division, located at Camp Lejeune, NC, and did remain so absent until on or about 920430 (207 days); violation of the UCMJ Article 134: Having been restricted to the limits of Headquarters and Service Company, 1 st Battalion, 8 th Marines, by a person authorized to do so, did, at Camp Lejeune, NC, on or about 920907, break said restriction.

921102:  Applicant's trial counsel recommended to the separation authority approval of Applicant's request for separation in lieu of trial by court-martial. Trial counsel referenced Commanding Officer, 1 st Battalion, 8 th Marines, 2d Marine Division recommendation for approval of same request.

921118:  GCMCA (Commanding General, 2d Marine Division, Camp Lejeune, NC) determined that Applicant had no potential for further service, that separa-tion 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 921207 under other than honorable conditions for
conduct triable by courts-martial (request for discharge for the good of the service) (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 requested that the NDRB review his discharge and consider an upgrade in order to help him become a better citizen. The Board, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the characterization and/or the reason for discharge if an error or inequity exists within the separation process. The Board found that no such error or inequity occurred during that time and that the Applicant’s discharge characterization accurately reflects his service to his country. Relief on this basis is denied .

 Further, the Board took into account the Applicant's stated post-service conduct in considering the Applicant's stated intention to return to school and to conduct himself as a model citizen. There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service. However, the NDRB is authorized to consider post-service factors in the recharacterization of a discharge. Outstanding post-service conduct, 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 may be considered. Verifiable proof of 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, and certification of non-involvement with civil authorities are examples of verifiable documents that may be provided to receive consideration for relief based on post-service conduct. At this time, however, the Applicant has not provided any post-service documentation for the Board to consider an upgrade. Relief on this basis, therefore, is denied.

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 P1900.16D), 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, Absence without leave (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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