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USMC | DRB | 2003_Marine | MD03-00708
Original file (MD03-00708.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD03-00708

Applicant’s Request
The application for discharge review was received on 20030310. The Applicant requested the characterization of service received at the time of discharge be changed to general/under honorable conditions. The Applicant requested a documentary record review. The Applicant did not list a representative on his DD Form 293. In the acknowledgement letter, the Applicant was informed he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington D.C. area. Subsequent to the application, the Applicant converted to a personal appearance hearing and obtained representation by the Veterans of Foreign Wars.

 Decision

A personal appearance discharge review was conducted in Washington, D.C. on 20050331. 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 4-1 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 stated

 Issues submitted by Applicant’s counsel/representative ( VETERANS OF FOREIGN WARS):
1. “EQUITY CONCERNING MITIGATING CIRCUMSTANCES THAT LEAD TO BEING DISCHARGED.”
2. “EQUITY CONCERNING POST SERVICE.”

The Applicant indicated prior to the hearing that the issue attached to his DD 293 is superseded by the issues above. Further, the Applicant indicated his letter should be considered a supporting document.
Additional issues submitted by Applicant’s representative (Veterans of Foreign Wars):

“1. XXXXXXXXXXXXXXXXXXXXX.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s ltr dtd 030226
Applicant’s DD Form 214
Applicant’s DD Form 215
Character reference, dated February 25, 2003
Character reference, undated
Letter of recommendation, undated
Oath of Extension of enlistment or reenlistment, dated January 24, 2003
w/ attachments (5 pages)
Certification of current weight, dated January 24, 2002
Letter from Applicant, dated July 23, 2003
Applicant’s DD Form 214 (Army National Guard)
Letter of recommendation, dated June 17, 2003
Memorandum for the record, dated May 30, 2003
Letter from the Applicant, dated October 17, 2003
Certificate of promotion, dated February 1, 2003
Certificate of promotion, dated September 13, 2003
Diploma, dated December 19, 2002
Certificate of completion, dated April 6, 2002 to April 20, 2002
Certificate of completion, dated December 15, 2002
Army Achievement Medal, dated September 8, 2003
Letter from Applicant, undated
DA Form 4187, dated December 1, 2002 (2)
Letter from Department of the Army, dated January 7, 2005 (2)
DD Form 638, dated April 30, 2003 (2 pages) (2)
DD Form 5186-R, undated (2)
Tested Tasks (2)
DA Form 1059, dated December 19, 2002 (2)
DA Form 1059, dated December 15, 2002 (2)
Certificate of completion, dated October 26, 2004
Certificate of completion, dated October 29, 2004
Certificate of completion, dated March 10, 2004 (2)
Certificate from Department of Health, Division of Emergency Medical Services, dated September 9, 2004
Certificate from Department of Health, Division of Emergency Medical Services, licensed through September 30, 2005
Certification as a Emergency Medical Technician - Basic, dated August 6, 2004
Certificate of completion, dated December 9, 2004
Certificate of appreciation for March 15, 2003 through May 21, 2003
Certificate of training, dated May 5-8, 2004
Verification of security clearance dtd 040728
Award certification and recommendation dtd 050124 (2 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None                      
         Inactive: USMCR (J)               880226 - 880425  COG

 Period of Service Under Review :
Date of Enlistment: 880426               Date of Discharge: 891018

 Length of Service (years, months, days):

         Active: 00 07 08                  (Accounts for lost time)
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 83

 Highest Rank: Pvt                          MOS: 0300

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.5 (4)                       Conduct: 2.1 (6)

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 231

 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 :

880919:  To unauthorized absence.

881017:  Charge sheet prepared for violation of the Uniform Code of Military Justice (UCMJ) Article 85: On or about 19 September 1988, without authority and with intent absent himself.

881020:  Declared deserter.

890122:  Applicant from unauthorized absence, surrendered.

890123:  Mark of desertion for UA beginning 880819 is hereby removed as erroneous.

890329:  To confinement.

890414:  From confinement.

890417:  To unauthorized absence.

890516:  Charge sheet prepared for violation of the Uniform Code of Military Justice (UCMJ) Article 85: Without authority and with intent absent himself. Violation of UCMJ, Article 86: On or about, 19 September 1988, without authority absent himself and did remain so absent until … 22 January 1989.

890517:  Declared deserter.

890802:  Apprehended by Dunlap Police Department.

890804:  Delivered to command.

890804:  To confinement.

890807:  Mark of desertion for UA beginning on 890417 removed as erroneous. Applicant to be charged with Article 86 violation only.

891012:  From confinement.

891018:  DD Form 214: Applicant discharged under other than honorable conditions by reason of conduct triable by courts-martial (request for discharge for good of the service), authority: MARCORSEPMAN Par. 6419.

 Applicant’s separation package not contained in service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

 Discussion

The Applicant was discharged on 19891018 under other than honorable conditions in lieu of trial by court-martial (A and B). After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D). The Board applied the presumption of regularity of governmental affairs in this case in the absence of a complete discharge package (E).

Issue 1. An under other than honorable conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. The Applicant’s service was marred by two unauthorized absences totaling 231 days. The Applicant’s second period of unauthorized absence was ended by apprehension. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the Marine Corps and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

The Applicant contends his unauthorized absences were the result of his family’s dire situation. The NDRB recognizes that serving in the Marine Corps is challenging. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country. It must be noted that most members of the Marine Corps serve honorably and therefore earn their honorable discharges. In fairness to those members, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due. The NDRB found that the Applicant's service was equitably characterized. Relief denied.

Issue 2. 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. The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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. After a complete review of the entire record, including the documentation submitted by the Applicant, the Board determined that his discharge was appropriate and that his evidence of post-service conduct was found not to mitigate the conduct for which he was discharged. Relief denied.

The following if provided for the edification of the Applicant. The Applicant has exhausted his opportunities for review by the NDRB. The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.


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 85, Desertion ; Article 86, Unauthorized absence for more than 30 days.
C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

 D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .
E. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

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 “ http://Boards.law.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:

                  Secretary of the Navy Council of Review Boards
                   Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023

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