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USMC | DRB | 2003_Marine | MD03-01128
Original file (MD03-01128.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD03-01128

Applicant’s Request
The application for discharge review was received on 20030616. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. The Applicant requests a documentary record 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 20040415. 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/IN LIEU OF TRIAL BY COURT-MARTIAL, authority: MARCORSEPMAN Par. 6419.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


 Issues, as stated
Applicant’s issues, as stated on the application:

1. “The reason for my OTH discharge was for AWOL. I was placed on medical hold before I would be sent to the Fleet. Upon graduating my MOS school I visited home and did not return on time because of my being disgusted with all my hard work up to this point being wasted. I wish I could take back my going awol and have served in the corp longer. I serve in the Army National Guard now and before entering the Marines, I was an Army reservist. I want to serve in the Marine Corp reserves, so that is why I request the upgrade of my discharge. My 11 years of service has been excellent except for that issue. Thank you for this consideration”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
MCT certificate
Fiscal Budget Technician Course certificate
LCpl promotion warrant
Certificate of Commendation
Meritorious Mast

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USAR              920204 – 920702  ELS
         Inactive: Could not be determined with available records

 Period of Service Under Review :
Date of Enlistment: 980922               Date of Discharge: 990726

 Length of Service (years, months, days):

         Active: 00 10 05
         Inactive: None

 Age at Entry: 25                          Years Contracted: 4

Education Level: 12                        AFQT: 75

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.6 (2)                       Conduct: 4.7 (2)

 Military Decorations: None

 Unit/Campaign/Service Awards: CC, MM

 Days of Unauthorized Absence: 64

 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

990429:  Applicant declared a deserter this date having been an unauthorized absentee since 0730, 990329 from FM Scol, MCCSSS, MCB, CLNC.

990528:  Applicant apprehended by PA State Police on 1155, 990528. Returned to military control 990601.

 990601:  To pre-trial confinement.

990615:  From confinement, to duty.

 990618:  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 more than 30 days.

990713:  SJA review determined the case sufficient in law and fact.

990715:  GCMCA [CG, MCB, CLNC] 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 19990726 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. On 19990618, the Applicant requested discharge for the good of the service to escape trial by court- martial. In the request the Applicant certified a complete understanding of the negative consequences of his actions and that characterization of service could be under other than honorable conditions. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

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. Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment. A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.

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 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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