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NAVY | DRB | 2004 Marine | MD04-00562
Original file (MD04-00562.rtf) Auto-classification: Denied


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


ex-LCpl, USMC
Docket No. MD04-00562

Applicant’s Request
The application for discharge review was received on 20040220. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance hearing before the board in the Washington National Capital Region. The Applicant listed a civilian counsel as the representative on the DD Form 293.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 20041028. 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 (Civilian Counsel ):
1. “Memorandum in Support of Application for Discharge Upgrade

Introduction

Z_ D_ M_ ( Applicant ), SSN (deleted), enlisted in the United States Marine Corps on July 19, 1989, and served on active duty from January 9, 1990, until April 19, 1991, the date of his discharge. Mr. M_ (Applicant) thoroughly enjoyed his Marine Corps service, and by all accounts was an outstanding Marine. During his brief time in service, Mr. M_ (Applicant) was promoted to the rank of Lance Corporal (E-3), and was awarded the Rifle Sharpshooter Badge and National Defense Service Medal. Mr. M_ (Applicant) experienced no difficulties in meeting the demands of Marine Corps life, and, with the exception of the events that led to his early discharge, was never counseled or disciplined for any reason whatsoever. In fact, Mr. M_ (Applicant) intended to make a career of the Marine Corps, and hoped to become an officer after completing the terms of his initial enlistment agreement and graduating from university.
The circumstances that ultimately led to Mr. M_'s (Applicant's) discharge from the Marine Corps are both tragic and extraordinary. As will become apparent from the discussion to follow, in many ways one has to admire Mr. M_ (Applicant) for his courage and dedication to his family, even though his actions constituted a violation of the Uniform Code of Military Justice, and resulted in his separation from the Marine Corps. It is Mr. M_'s (Applicant's) hope that this Board will recognize was required to function while serving in the Marine Corps. The principles of equity that guide this Board’s deliberations in cases such as these clearly warrant the granting of the requested relief.
Timeliness of the Application

 10 U.S.C. § 1553 provides a 15-year limitation period for the filing of applications with this Board. Mr. M_ (Applicant) was discharged from the Marine Corps on April 19, 1991. This application therefore is timely filed.
Statement of Facts

In 1988, Mr. M_'s (Applicant's) older brother, E_ M_, was killed in an automobile accident under tragic circumstances. The impact of his unexpected death on the entire Marshall family was understandably severe. Mr. M_'s (Applicant's) father became so severely depressed that he was unable to continue in employment, and was immediately retired from his position at ITT in New York. His father has never fully recovered from his son’s death.
Mr. M_'s (Applicant's) younger brother, E_, also was deeply disturbed by his brother’s sudden death. During the time Mr. M_ (Applicant) was serving in the Marine Corps, E_ began to use drugs, stopped attending high school, and was generally engaged in self-destructive, anti-social behavior. These behavior patterns were new for E_, and in all likelihood were the direct consequence of the strains placed on him and his family by his eldest brother’s death and his father’s illness. It goes without saying that E_’s behavior caused the family considerable alarm, and exacerbated the father’s already strained state of health.
Mr. M_ ( Applicant ) enlisted in the Marine Corps at the age of 17, with his father's written consent. As noted above, Mr. M_ ( Applicant 's) had always wanted to be a Marine, and intended to make the Marine Corps his career. His intention was to fulfill his initial term of enlistment on active duty, and then attend university under a Marine Corps commissioning program. Afterward, Mr. M_ (Applicant) intended to service indefinitely as a Marine Corps officer.
While Mr. M_ (Applicant) was on active duty during the summer of 1990, his father’s health deteriorated, and for a time there were serious concerns that he might have a terminal form of cancer. It was during the same period of time that Mr. M_'s (Applicant's) younger brother became involved in potentially self-destructive activities. Mr. M_'s (Applicant's) family was still grieving the loss of E_, and was struggling intensely. Mr. M_ (Applicant) strongly desired to be near his family in order to provide them with needed assistance.
In May, 1990, Mr. M_ (Applicant) raised these issues through his chain-of-command in the hope that a remedy could be found. He spoke to members of his chain-of-command about getting reassigned to a duty station closer to his family, and about changing his MOS in order to make such reassignment possible. Around June 27, 1990, Mr. M_ (Applicant) was granted extended leave in order to return home and spend time with his family. This was the only relief the Marine Corps granted Mr. M_ (Applicant).
After departing on authorized leave, Mr. M_ (Applicant) remained home for a period of six months, during which time he provided greatly needed assistance to his father and brother. When Operation Desert Shield became Operation Desert Storm, Mr. M_ (Applicant) made the decision to return to the Marine Corps, even though he had already enrolled in Penn State University and had paid $2,000 in tuition fees. He returned to Camp Lejune in dress uniform with the intention of remaining in the Marine Corps and completing his required active duty service. Mr. M_ (Applicant) intentionally returned at the outbreak of combat operations in the Persian Gulf precisely because he did not wish to evade hazardous duty.

 Unfortunately, after being told by the Marine Corps that he likely would be allowed to return to his unit and complete his obligated period of active duty service, Mr. M_ (Applicant) received contrary advice from a civilian attorney experienced with military matters, who strongly advised Mr. M_ (Applicant) to seek discharge from the Marine Corps. Mr. M_ (Applicant) followed this advice, which also was endorsed by his father, and ultimately was discharged from the Marine Corps.
Argument

I. The Characterization of Mr. M_'s (Applicant's) Discharge was Unjust in Light of the Circumstances That Compelled His Absence.

Mr. M_ (Applicant) was discharged from the Marine Corps under Other Than Honorable Conditions (“OTH”). At first glance, the conditions under which Mr. M_ (Applicant) was discharged separation for the good of the service in lieu of court-martial proceedings for unauthorized absence—might appear to justify such a harsh characterization. This Board, however, is empowered under principles of equity to reevaluate the characterization of a discharge in light of the circumstances surrounding the discharge. The reasons for Mr. M_'s (Applicant's) unauthorized absence, which are detailed above, provide compelling grounds for granting the relief requested.
SECNAVINST 5420.1 74C details the grounds upon which this Board may exercise its equitable jurisdiction. Three grounds are particularly relevant here: 1) the quality of Mr. M_'s (Applicant's) service; 2) his capability to serve as a Marine; and 3) mitigating circumstances. With regard to the quality of Mr. M_'s (Applicant's) service, it is noteworthy that Mr. M_ (Applicant) performed very well as a Marine prior to the development of the circumstances necessitating his absence from active duty. He successfully recruited 6 recruits, which, in part, earned him a meritorious promotion. Mr. M_ (Applicant) posed no problems of a disciplinary nature, and was never the subject of negative personnel action or non-judicial punishment. By all accounts, Mr. M_ (Applicant) was a loyal and effective Marine. He was awarded the Sharpshooter Badge and the National Defense Service Medal. He was promoted to the rank of Lance Corporal in an expeditious manner. He had never sought separation from the Marine Corps, nor did he absent himself without authority on any other occasion. There is no evidence in the record to suggest that the performance of his duties was anything less than fully satisfactory. Nor did Mr. M_ (Applicant) absent himself in order to avoid hazardous duty: this is evidenced by the fact that his absence occurred in July, 1990, well before Operation Desert Shield began.
As regards Mr. M_'s (Applicant's) capability to serve as a Marine, SECNAVINST 5420.174C. Paragraph 9.2.c.2, provides that this Board will consider family and personal problems in determining the justness of a discharge characterization. In particular, the Board should consider “matters in extenuation or mitigation of the reason for discharge that may have affected the Applicant’s ability to serve satisfactorily.”
As described in detail in the Statement of Facts, Mr. M_ (Applicant) was 18 years old and going through an extraordinarily difficult period when he absented himself from the Marine Corps. His older brother had died unexpectedly only two years earlier, his father was very ill, and his younger brother’s conduct was deteriorating rapidly. Mr. M_ (Applicant) felt tremendous responsibility for his family’s welfare, and made every effort to find a long-term solution to his problems through Marine Corps channels.
The Marine Corps granted Mr. M_ (Applicant) limited assistance, allowing him to return home on humanitarian leave. No other solutions had been obtained, though Mr. M_ (Applicant) made formal requests for assignment to a Marine Corps installation closer to his home. Once home, Mr. M_ (Applicant) decided that absenting himself from the Marine Corps was the only way in which he could effectively attend to his family’s needs.
This Board should note that Mr. M_ (Applicant) never attempted to evade the Marine Corps. Mr. M_'s (Applicant's) unit knew at all times where he was located. He did not act as a felon on the run: rather, he remained in College Station, at his family home, and worked to provide additional income to his family. Mr. M_ (Applicant) never engaged in any conduct that might bring discredit upon the Marine Corps. Indeed, despite his early discharge, his love for the Marine Corps has not subsided.
If he were able, Mr. M_ (Applicant) would gladly turn back the hands of time. Of course, he would love more than anything to have his brother back, his father well, his family whole, and enjoy a long-term career in the Marine Corps, as he had planned. Obviously, however, this is not possible. What happened to Mr. M_ (Applicant) at the age of 18 was tragic. Such circumstances would be more than many mature adults could bear. Mr. M_ (Applicant) truly was faced with a cruel dilemma: abandon his family in their time of greatest need or absent himself from the Marine Corps.
Mr. M_ (Applicant) made his decision and paid a high price for it. Twelve years later, he asks that this Board consider the extraordinary circumstances that influenced his decision to absent himself from the Marine Corps, along with his outstanding conduct as a Marine and as a civilian after his discharge, and upgrade his discharge characterization to Honorable.
II: Clemency Considerations Based on Mr. M_'s (Applicant's) Post-discharge Conduct Warrant the Granting of the Relief Requested.

In the 12 years since Mr. M_'s ( Applicant 's) separation from the Marine Corps, he has been a productive and responsible member of society. Mr. M_ (Applicant) received a Bachelor’s Degree from the Pennsylvania State University, graduating with an overall GPA of 2.89, and a GPA of 3.39 in his major course of study. Mr. M_ (Applicant) served as a volunteer coach for children’s activities in his county of residence, and as a paid coach for six years with the State College Area school district’s Intramural Sports Program. Mr. M_ (Applicant) also worked for the United States Census Bureau training guests from foreign countries in the operation of the U.S. census program.
In the Spring of 1993, Mr. M_ (Applicant) began to experience debilitating physical symptoms. After two years of medical assessments and various treatments, he finally was diagnosed with rheumatoid arthritis and fibromyalgia, disorders of the autoimmune system. Since that time, Mr. M_ (Applicant) repeatedly has been hospitalized for these conditions, and now receives Social Security Disability income. He no longer is able to work, and must constantly battle opportunistic infections that on occasion are life-threatening. Mr. M_ (Applicant) frequently is unable to get out of bed due to infections and the side effects of the numerous medications he must take.
This Board also should note that Mr. M_ (Applicant) has had no encounters with law enforcement or the criminal courts. Mr. M_ (Applicant) is a patriotic, law-abiding citizen committed to our nation’s constitution and the rule of law. He has volunteered his time and energies in local and national political campaigns, and has been active in local community affairs. In truth, with the exception of his discharge from the Marine Corps, Mr. M_ (Applicant) has been an ideal citizen. These factors strongly demonstrate that Mr. M_'s (Applicant's) discharge should be upgraded on grounds of equity and clemency, as permitted under SECNAVINST 5420.1 74C.
Conclusion

Mr. M_ ( Applicant ) respectfully requests that this Board upgrade his discharge characterization to honorable. He does so not for any material gain, as it is extremely unlikely that he will ever again be gainfully employed. Rather, his request is motivated by a deep sense of dignity, honor and remorse. He truly and deeply regrets not having served as a Marine for a longer period of time, and his love of and respect for the Marine Corps has continued unabated to this day. Based on the foregoing, this Board has ample grounds to upgrade his discharge to that of Honorable.
Respectfully submitted,

 R_ J_ T_
 Attorney for Applicant

 The Law Offices of D_ P_ S_
 (Address deleted)
 (Telephone numbers deleted) ”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Medical documents
Copy of degree certificate, PSU
 Ltr from L_ B. H_
 Ltr from E_ D. J. M_
 Ltr from T_ S_

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
          Inactive: USMCR(J)                890719 - 900108  COG

 Period of Service Under Review :
Date of Enlistment: 900109               Date of Discharge: 910415

 Length of Service (years, months, days):
         Active: 01 03 07                  [does not exclude lost time]
          Inactive: None
Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 89
Highest Rank: LCpl                         MOS: 0311

 Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: 2.0 (1)                       Conduct: 2.0 (1)

 Military Decorations: None
Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: 176
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 :

900807:  Applicant declared a deserter on 900807 having been an unauthorized absentee since 0501, 900807.
910221:  Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 86: Unauthorized absence from 900727 to 910123 (176 days/surrendered).
910313:  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: Unauthorized absence from 900727 to 910123 (176 days/surrendered).
910401:  SJA review determined the case sufficient in law and fact.

 910402:  GCMCA [Commanding General, Marine Corps Base, Camp Lejeune, NC] 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.

960429:  NDRB documentary record review Docket Number MD96-00239 conducted. Determination: discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

 Discussion

The Applicant was discharged on 19910415 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).
1. When the service of a member of the U.S. Marine Corps has been honest and faithful, it is appropriate to characterize that service as honorable. 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 unauthorized absence for a period of 176 days, a serious offense. In addition, during the hearing, the Applicant admitted that he knowingly missed his unit’s regularly scheduled deployment, a second serious offense, during his period of unauthorized absence. While the Board appreciates the Applicant’s heartfelt remorse for his misconduct, 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.

On 19910313, 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 that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

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 evidence 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 NDRB has no authority to provided additional review of this case. 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 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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