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NAVY | DRB | 2004 Marine | MD04-00334
Original file (MD04-00334.rtf) Auto-classification: Denied


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


ex-Pvt, USMC
Docket No. MD04-00334

Applicant’s Request
The application for discharge review was received on 20031210. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance hearing review in the Washington National Capital Region or a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041222. 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 HONORABLE CONDITIONS (GENERAL)/Determination of Service Secretary – Secretary of the Navy Plenary Authority, authority: MARCORSEPMAN Par. 6214.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


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

 1. “It will put closure to a lot of pain I have left over from my traumatic fall from the helicopter. Still haunts me today 11 years later.”

 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: None
          Inactive: USMCR(J)                901129 - 910422  COG
Period of Service Under Review :
Date of Enlistment: 910423               Date of Discharge: 950127

 Length of Service (years, months, days):

         Active: 03 09 05 (Does not exclude lost or confinement time.)
         Inactive: None
Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 39
Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 2.7 (13)             Conduct: 2.7 (12)
Military Decorations: None

Unit/Campaign/Service Awards: NDSM, SWASM, SSDR, Rifle Expert Badge

 Days of Unauthorized Absence: 129
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER HONORABLE CONDITIONS (GENERAL)/Determination of Service Secretary – Secretary of the Navy Plenary Authority, authority: MARCORSEPMAN Par. 6214.

 Chronological Listing of Significant Service Events :

920929:  Applicant sustained a fractured right leg from a 30 foot fall from a helicopter in a training exercise. Injury requires surgery for repair.
930120:  Unauthorized absence since 0730, this date.

 930122:  Surrendered onboard at 0900, this date.
930126:  NJP for violation of UCMJ, Article 86: On or about 930120, without authority, absent himself from his unit, to wit: C Co, 1 st Battalion, 4 th Marines, Camp Pendleton, CA and did remain so absent until 930122.
 Awarded restriction and extra duties for 14 days. Not appealed.
930223:  Unauthorized absence since 0700, this date.
930225:  48 hour phone call made to Applicant’s next of kin.

 930305:  10 day UA letter made to Applicant’s next of kin concerning current UA status.
930326:  Declared deserter this date, DD553 published on 930329.

 930409:  Apprehended at Dallas/Ft. Worth International Airport by Airport Police and held until CPCA, Dallas could escort Applicant back to 1 st Battalion, 4 th Marines, 1 st Marine Division, Camp Pendleton, CA.
930412:  NJP for violation of UCMJ, Article 86: On or about 0700, 23 Feb 93 without authority and with intent to remain away therefrom permanently, absent himself from his unit to with: C Co, 1 st Battalion, 4 th Marines located at Camp Pendleton, CA and did remain so absent in desertion until he was apprehended and returned on or about 1130, 10 Apr 93; Violation of UCMJ, Article 92: Did on or about 10 Apr 93, violate a lawful order to wit: MCO P1020.34E dated 24 Jan 88, by wrongfully wearing an earring in one ear; Violation of UCMJ, Article 107: Did, during a phone conversation did on or about 1500, 9 Apr 93, with intent to deceive, made a false statement to wit: “I will be coming in from LAX to Camp Pendleton to turn myself in” which statement was totally false in that LCpl R_ (Applicant) flew to Dallas/Ft Worth, TX and was then known by the said LCpl R_ (Applicant) to be so false.
 Awarded forfeiture of $456.00 per month for 2 months, reduction in pay grade to E-2, restriction for 60 days. Not appealed.
930422:  Physical Evaluation Board: Found Applicant physically unfit to perform duties with a percentage of disability of 40% and directed the Applicant be temporary retired.
930428:  Counseled for deficiencies in performance and conduct [frequent involvement with military and civilian authorities as indicated by several unauthorized absences, which were addressed by nonjudicial punishment, failure to exercise sound judgment, little respect for USMC standards, both of conduct and discipline, lack of integrity, and lack of maturity]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
930528:  Unauthorized absence since 0700, this date.

 930530:  48 hour phone call made to Applicant’s next of kin.
930602:  CMC directed Applicant’s Transfer to the Temporary Disability Retired List (TDRL) with 40%, effective 7 July 1993.
930607:  10 day UA letter made to Applicant’s next of kin concerning current UA status.
930628:  Declared deserter this date, DD533 published this date.

 930707:  Apprehended by Ft. Mitchell Police Dept, Ft. Mitchell, KY at the request of Applicant’s Father and Collection Unit, HQMC Authority. While police officers were attempting to apprehend Applicant, there was a confrontation and Applicant was detained for resisting arrest until his civilian court hearing on 930707. Upon completion of court hearing, MCCU, Atlanta escorted Applicant to command for release to our authority. Command has Applicant’s service, medical, and dental records on hand at this time.
930727:  Unauthorized absence since 0700, this date.
930729:  48 hour phone call made to Applicant’s next of kin.

 930805:  10 day UA letter made to Applicant’s next of kin concerning current UA status.
930811:  Surrendered at 1230, this date.
930811:  NJP for violation of UCMJ, Article 86: Did on or about 0700, 930528 without authority and with intent to remain away permanently, absent himself from his unit, to wit: Company C, 1 st Battalion, 4 th Marines, 1 st Marine Division (REIN), FMF, Cam Pendleton, CA and did remain so absent until he was apprehended and returned at 2200, 930707; Violation of UCMJ, Article 86: Did on or about 0700, 930727 without authority absent himself from his unit, to wit: Company C, 1 st Battalion, 4 th Marines, 1 st Marine Division, at Camp Pendleton, CA and did remain so absent until he was escorted back to military control on or about 1230, 920811; Violation of UCMJ, Article 92: Having received a lawful order from GySgt F_, a Staff Noncommissioned Officer, then known by the said PFC R_ (Applicant) to be a staff NCO, to return from leave no later than “7AM Tuesday, 930727” or words to that effect, an order in which it was his duty to obey, did, on or about 0700, 930727 willfully disobey the same; Violation of UCMJ, Article 92: having received a lawful order from Cpl T_, a Noncommissioned officer, then known to be by he said PFC R_ (Applicant) to be a NCO, to “Return to the Battalion by 1600,” or words to that effect, willfully disobey the same.
         Award: Forfeiture of $407 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.
930902:  Unauthorized absence since 1600, this date.

 930921:  Apprehended by chasers at 2300, this date.
930928:  Unauthorized absence this date.
931001:  Declared deserter this date as of 0120, 930928.
931003:  Apprehended 1226 this date by civilian authorities. Applicant had escaped from DNCO’s custody within two hours after previous apprehension. Applicant’s girlfriend had paid for his airfare with a bounced check to Delta Airlines. Applicant has no civil charges pending at this time. Applicant returned to military control at 1645, 931004. Battalion OOD immediately processed Applicant for confinement at Corrections Battalion, Camp Pendleton, CA. Applicant currently being held waiting for his Magistrate hearing, Applicant still pending final disposition for OTH/AdSep procedures.
931004:  To confinement at correction battalion.
931206:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 86 (2 Specifications):
          Specification 1: Unauthorized absence from 02 Sep 93 until apprehended on 27 Sep 93.
          Specification 2: Unauthorized absence from 28 Sep 93 until apprehended on 3 Oct 93.
         Charge II: violation of the UCMJ, Article 95.
          Specification: Did escape from custody on 28 Sep 93.
         Findings: to Charge I and specifications 1 and 2 thereunder, guilty.
To Charge II and specification thereunder, guilty.
         Sentence: Confinement for 6 months, forfeiture of $543 pay per month for 6 months, and a bad conduct discharge.
          CA 940627: Sentence approved and ordered executed except for the BCD, but execution of that portion of the sentence adjudging confinement in excess of 64 days is suspended for a period of 12 months from date of trial, at which time, unless sooner vacated, the suspended confinement will be remitted without further action.

931218:  From confinement, to duty.

931223:  To appellate leave.

 940517:  CMC request advised the status of Applicant’s TDRL.
940727:  Applicant advised that the Secretary of the Navy determined Applicant not physically qualified to perform duties and directed Applicant be temporarily retired. Applicant was directed to transfer to the Temporary Disability Retired List (TDRL) effective 7 July 93.
950125:  NC&PB remitted the bad conduct discharge and, with authority delegated by the SECNAVINST 5815.3H, authorized Applicant’s discharge with a general.
950127:  Applicant discharged with a General (Under Honorable Conditions) by reason of “Determination of Service Secretary – Secretary of the Navy Plenary Authority.”
950421:  NMCCCA: Affirmed findings and sentence.

 950517:  USCAAF: Petition for grant of review was filed this date. Supplemental petition to be filed on or before June 16, 1995.
950614:  USCAAF: Motion to extend time to file petition granted to July 17, 1995.
950824:  USCAAF: Petition for grant of review denied.

 961004:  Appellate review complete.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19950127 with a General (Under Honorable Conditions) by reason of “Determination of Service Secretary – Secretary of the Navy Plenary Authority” (A). The Board presumed regularity in the conduct of governmental affairs (B). 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 (C and D).
Issue 1: With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency (C, Part IV). The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The NDRB found the Applicant’s service record absent of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded. 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 6214, SEPARATION IN THE BEST INTEREST OF THE SERVICE , of the Marine Corps Separation and Retirement Manual, MCO P1900.16D, effective 890627 until 950817).
B. 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.

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 .

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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