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NAVY | DRB | 2004 Marine | MD04-00091
Original file (MD04-00091.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD04-00091

Applicant’s Request
The application for discharge review was received on 20031020. 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 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 20041015. After a thorough review of the available 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/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.6.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


 Issues, as stated

 Applicant’s issues, as stated on the application:

 1. “My wife has suffered from depression for a number of years. She is able to do regular household duties and take care of our children. When her father died it triggered her emotions and nervous system with a big impact. Where she was not able to do the simple household duties. Before I went to boot camp my wife had depression and went through a biopsy. We knew her father was going to past away, but my recruiter said that if my depression would worsen the marine corps will let me go and take care of her until she is fit to do so by herself. In the worst case scenario it did happen and it happen when I was in delta co. 1 st platoon. That her father died. My leave was from February 21,2002 through February 26, 2002 but if I wanted to graduate with delta co. I had to be back by the 24 th . On Feb 24 2002 I went to the airport and my wife broke down and said she did not know what to do. So I called the duty officer Sgt. N_ and explained the situation and he said that there was nothing he can do for me to go back to training. I replied that my wife was under a lot of medication and she was not stable enough to take care of our kids. So if I left no one would be able to take care her and our kids because both of our families live in N.Y. So Sgt. N_ asked me if I was coming back and I said yes but not now and he said are you going U.A. and I said I guess what can I do. So I tried to call the number that was on my leave papers which was (telephone number deleted) for a month and a half I tried calling this number and it was always busy.

The next for me to do was to call my recruiter and explained to him my situation at first I was scared but I let him know all my information. I also gave him the number I was giving on my papers. He tried calling also for a couple of weeks I waited for a response from my recruiter. So I called him and he thought that I went back and I told him to whom do I go back to that I did not want to just walk on the base. So he called the reserve unit in New Haven Connecticut. Where I had to find transportation and report to 1 st Sgt. P_. The next monday I was on my way to camp Geiger. I was told that when I get to the airport I would be picked up. No one ever showed up to pick me up I had no money and had to find transportation to the base. I got to the base Tuesday morning. When I got there no one was in delta co. so I called 1 st Sgt. P_ and he said for me to wait in front of the chow hall somebody is coming to get me. So I went to see the Master Sgt. At student Administration. She asked me why I went U.A. and I explained and she asked me if I knew what was humanitarian leave and I told her no. I also told her that I had doctors papers describing my wife condition and what type of medication she was taking at the time. So she explained to me what was humanitarian leave but it was too late for me to request it. She also told me that the number on my leave papers was change in January and that is why I always got the busy signal. So she send legal seperation where I was separated at the time. This is my reason why I went U.A. and requesting a change of discharge from Other than honorable to General under Honorable conditions. I also realize that I miss the marine corps because it is my dream to be a United States Marine with an honorable discharge. Thank you for your time sincerity.

Sincerely

M_ R_ D_ (Applicant)”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Mental Health information form, dated March 12, 2001
Leave authorization, NAVMC 3
Special Request/Authorization, NAVPERS 1336/3, dated February 26, 2002

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                010316 - 011014  COG

 Period of Service Under Review :
Date of Enlistment: 011015               Date of Discharge: 021007

 Length of Service (years, months, days):

         Active: 00 11 23         Does not exclude lost time
         Inactive: None

 Age at Entry: 23                          Years Contracted: 4

 Education Level: 10 GED           AFQT: 33

 Highest Rank: PFC                          MOS: 9900

Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: NMF*                          Conduct: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: RMB

 Days of Unauthorized Absence: 116

*No marks found in service record.

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.6.

 Chronological Listing of Significant Service Events :

020226:  Applicant to unauthorized absence 0700.

 020621:  Applicant from unauthorized absence 1100 (116 days/surrendered).

020809:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86:
         Specification: Unauthorized absence from 020226 until 020626.
          Finding: to Charge I and the specification thereunder, guilty.
          Sentence: Forfeiture of $377.00, confinement for 30 days, reduced to E-1.
         CA action 020815: Sentence approved and ordered executed. The accused is granted 21 days relief for pre trial confinement towards the period of confinement approved.

020809:  Applicant to confinement.

020815:  Applicant from confinement.

020923:  SJA review determined the case sufficient in law and fact.

020930:  GCMCA [Commander, Marine Corps Base, Camp Lejeune, NC] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

 Parts of Applicant’s discharge package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20021007 under other than honorable conditions by reason of misconduct due to the commission of a serious offense (A and B). After a thorough review of the available records, supporting documents, facts, and circumstances unique to this, the Board found that the discharge was proper and equitable (C and D). The presumption of regularity of governmental affairs was applied by the Board 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 a court-martial conviction for a violation of Article 86 of the UCMJ for 116 days in unauthorized absence. 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 U.S. Marine Corps and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

The Applicant contends that his problems in the Marine Corps can be attributed to his wife’s depression. While he may feel that his family responsibilities were the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge. Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

 A. Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 01 September 2001 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 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D. 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.

E. 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.

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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