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USMC | DRB | 2003_Marine | MD03-00176
Original file (MD03-00176.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD03-00176

Applicant’s Request
The application for discharge review, received 20021106, 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 20031003. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. 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

Prior to the documentary discharge review, the Applicant introduced no issues, as block 8 on the DD Form 293 is blank; however, the Applicant marked the box "I PREVIOUSLY SUBMITTED AN APPLICATION ON (Enter date) AND AM COMPLETING THIS FORM IN ORDER TO SUBMIT ADDITIONAL ISSUES." No previously submitted application was found and no date was entered in the space provided to establish when the “previously submitted application” was mailed.


Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214, Member - 4
Applicant’s DD Form 214, Member - 1
Job reference, dated December 19, 2002
Letter from SouthEastern Arizona Behavioral Health Services, Inc., dated December 24, 2002
Character reference from Immaculate Conception Church, dated December 20, 2002

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                910426 - 920126  COG

 Period of Service Under Review :
Date of Enlistment: 920127               Date of Discharge: 930910

 Length of Service (years, months, days):

         Active: 01 07 14 (Does not include lost time.)
         Inactive: None

 Age at Entry: 24                          Years Contracted: 4

 Education Level: 12                        AFQT: 68

 Highest Rank: Pfc

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 2.1 (4)                       Conduct: 1.8 (4)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR

 Days of Unauthorized Absence: 32

 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 :

921123:  Applicant to unauthorized absence 0601, 921123.

 921209:  Applicant from unauthorized absence 1445, 921209 (16 days/apprehended).

921221:  Confined 1630, 921221 to 1329, 921224 (Extracted from LES for 1 – 28 Feb 93 and confirmed by Applicant’s Medical Record).
930317:  Counseled for deficiencies in performance and conduct. [Attributable to immaturity and inability to adjust behavior to conform to the requirements of military service and specifically, personal behavior which necessitated hospitalization due to thoughts of self-harm and difficult coping with the normal stress and duty requirements of a Marine.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

930330:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86:
         Specification 1: Failure to go to place of duty.
         Specification 2: Unauthorized absence from unit.
         Charge II: violation of the UCMJ, Article 91:
         Specification: Disobeying a lawful order.
         Finding: to Charge I and II and the specification thereunder, guilty.
         Sentence: Forfeiture of $542.00, confinement for 30 days, reduced to Pvt.
         CA action 930330: Sentence approved and ordered executed.

 930330:  Applicant to confinement.

930423:  Applicant from confinement.

930717:  Applicant to unauthorized absence 0801, 930717.

 930805:  Applicant from unauthorized absence 1300, 930805 (18 days). Applicant placed in pretrial confinement, pending legal action.
930811:  Applicant to confinement.

 930817:  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 honorable conditions. The Applicant admitted guilt to the following violations of the UCMJ, Article 86: Absent from unit from 930717 and did remain so absent in desertion until 930805.

930824:  SJA review determined the case sufficient in law and fact.

930824:  GCMCA [Commanding General, III Marine Expeditionary Force] 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.

 930826:  Applicant released from confinement.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

 Discussion

The Applicant was discharged on 19930910 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).

The Applicant introduced no decisional issues for consideration by the Board. 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 P1900.16D), 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, unauthorized absence, and Article 91, Disobeying a lawful order.
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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