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NAVY | DRB | 2004 Marine | MD04-00479
Original file (MD04-00479.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD04-00479

Applicant’s Request
The application for discharge review was received on 20040128. The Applicant requested the characterization of service received at the time of discharge be changed to entry level separation or uncharacterized conditions and the reason for the discharge be changed to “ None of N/A. ” The Applicant requested a documentary record review. The Applicant did not list a representative on his DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040827. 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 and reason for 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

The Applicant submitted no issues.


Documentation
Regarding additional documentation, the Applicant marked the box "WILL NOT BE SUBMITTED. PLEASE COMPLETE REVIEW ON AVIALIABLE SERVICE RECORDS." on the second page of his DD 293 .
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None                      
         Inactive: USMCR (J)               970616 - 970720  COG

 Period of Service Under Review :
Date of Enlistment: 970721               Date of Discharge: 990331

 Length of Service (years, months, days):

         Active: 00 11 09 (Accounts for lost time.)
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 56

 Highest Rank: LCpl (MOS: 1316, Metal Worker)

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.1 (4)                       Conduct: 4.2 (3)

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: (239) 980628-990221; (32) 990223-990325

 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 :

970602:  Initial enlistment contract documents admission of pre-service marijuana experimentation. Enlistment waiver granted. Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
980628:  Applicant UA (AWOL) since 0700, 980628.

980728:  Applicant declared a deserter on 980728 having been an unauthorized absentee since 0700, 980628 from 8 th Eng Spt Bn, 2d FSSG.

990224:  Applicant apprehended by civil authorities on 990222 by Henry County Sheriff ’ s Office. Returned to military control by USMC chasers who delivered him to MCB Albany, GA.
990312:  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: … did, on or about 28 June 1998, with out authority, absent himself from his organization … and did remain so absent until he was apprehended on or about 22 February 1999.

990325:  SJA review determined the case sufficient in law and fact.

990326:  GCMCA [Commander, Marine Corps Logistics Base, Albany, GA] 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 19990331 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.

 On 19 990312 , the Applicant 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 was guilty of the offenses. He further 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 the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Additionally, the summary of service clearly documents that the Applicant was discharged in lieu of trail by court-martial and that no other Narrative Reason for Separation could more clearly describe why the Applicant was discharged. Relief denied.

The NDRB recognizes serving in the Marine Corps is very challenging. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve our country. It must be noted most Marines serve honorably and well; thereby, earning honorable discharges. In fairness to those Marines, commanders and separation authorities are tasked to ensure undeserving Marines receive no higher a service characterization than is due. Relief is not warranted.

 The Applicant is reminded 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 31 August 2001.

 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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