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NAVY | DRB | 2004 Marine | MD04-00678
Original file (MD04-00678.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD04-00678

Applicant’s Request
The application for discharge review was received on 20040317. The Applicant requested the characterization of service received at the time of discharge changed to honorable. The Applicant requested a personal appearance hearing before the board in the Washington, D.C. Metropolitan area. The Applicant did not list a representative on his DD Form 293. Subsequent to the application, the Applicant obtained representation by the American Legion.

Decision

 A personal appearance discharge review was conducted in Washington, D.C. Metropolitan area on 20050912. After a thorough review of all 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 characterization of the discharge reason for discharge shall not change. The discharge shall remain Under Other Than Honorable Conditions in lieu of a trial by court-martial .
A personal appearance discharge review was conducted in Washington, D.C. on YYYYMMDD. 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/Conduct triable by courts-martial (request for discharge for the good of the service), authority: MARCORSEPMAN Par. 6419.

 The NDRB did note administrative error(s) on the original DD Form 214. Block 29, Dates of Time Lost During This Period, should read: “_________________” vice “TL: _____________________. ” The Commandant, Headquarters USMC, Quantico, VA, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.






THIS IS THE CORRECT SHELL FOR A SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL, EFFECTIVE 27 JUN 89 UNTIL 31 JUN 94, ONLY.

The finding for SILT is effective 27 Jun 89 until 17 Aug 95, however, the Commandant of the Marine Corps issued an official list of the new DoD SPD codes and narrative reasons for separation on 940701.

THE CORRECT NARRATIVE REASON FOR SEPARATION FOR SPD CODE KFS1 FROM 27 JUN 89 Until 30 JUN 94 IS “Conduct triable by courts-martial (request for discharge for the good of the service)”. (Listed on page 1-57 of MCO P1900.16D, effective 27 Jun 89) There is not a shell for SIL8707 because P1900.16C, Ch 4, effective 870729, was not applicable to par. 6419 .

A general discharge is written “ UNDER HONORABLE CONDITIONS (GENERAL)” (See MCO P1900.16D, page 1-33, effective 27 Jun 89)

An under other than honorable conditions discharge is written “UNDER OTHER THAN HONORABLE CONDITIONS” (See MCO P1900.16D, page 1-33, effective 27 Jun 89)

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


 Issues, as stated

Issues presented by the Applicant’s American Legion representative supersede those listed on the original application:

1 (Equity) Family problems, father’s illness and death, contributed to and mitigate misconduct.

2. (Equity) Post-service conduct.
 Additional issues submitted by Applicant’s representative (American Legion):

“1. XXXXXXXXXXXXXXXXXXXXX.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from Applicant, dtd February 17, 2004 (2 pages)
Letter from Applicant, dtd August 11, 1994 (2 pages)
Letter from Applicant’s mother, dtd May 9,1990
Applicant’s fathers’ death certificate, dtd April 12, 1990
Applicant’s DD Form 214
Sixteen pages from Applicant’s service record
Job reference, Appointment of Firefighter-Paramedic, dtd June 9, 1997
Letter of recommendation, dtd May 12, 2003
Letter of recommendation, dtd May 13, 2003
Letter from Town Manager, Town of Stoughton, MA, dtd December 14, 1999
Job/character reference, dtd May 5, 1994 (2 copies)
Letter of recommendation, dtd May 16, 2003 (2 pages)
Job/character reference, dtd November 16, 2001
Acknowledgement letter, dtd January 15, 2003
Certificate of completion, dtd June 25, 1992
Certificate of completion, January 28, 1993
Certificate of completion, dtd September 19, 1997
Certificate of completion, dtd July 25, 1993
Certificate of completion, September 19, 1997
Certification as a Fire Fighter I/II, dtd September 19, 1997
Certificate of completion, dtd March 28, 2003
Certificate of attendance, dtd December 19, 2003
Certificate of attendance, dtd May 9, 2003
Certificate of attendance, dtd December 19, 2003
Certificate of attendance, dtd May 23, 2003
 Certificate of achievement, dtd February 14, 2003
 Certificate of achievement, dtd April 25, 2003
Certificate of achievement, dtd March 28, 2003
Certificate of achievement, dtd March 14, 2003
Certificate of achievement, dtd February 28, 2003
Certificate of achievement, dtd April 11, 2003
Certificate of attendance, dtd January 31, 2003
Certificate of attendance, dtd January 17, 2003
Certificate of attendance, dtd January 10, 2003
 Certificate of attendance, dtd December 6, 2002
Letter of acceptance to San Diego Police Department Volunteer Services, dtd March 18, 2004
Certificate of completion, Certified Law Enforcement Peace Officer Academy, dtd January 12, 2005
Certificate of Achievement, Administration of Justice Law Enforcement Technologies, dtd May 2005
Certificate of completion, Uderstanding the Juvenile System for Patrol, dtd August 23, 2005
Certificate of completion, Flying with Firearms, dtd July 19 2005
Photocopy of Applicant’s City of San Diego Police Department identification card and badge

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active:                            None                      
         Inactive: USMCR (J)               880809 - 890709  COG

 Period of Service Under Review :
Date of Enlistment: 890710               Date of Discharge: 900628

 Length of Service (years, months, days):

         Active: 00 05 04         (Excludes lost time.)
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 52

 Highest Rank: PFC                          MOS: 9900 (Basic Marine)

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.2 (2)                       Conduct: 4.2 (2)

 Military Decorations: None

 Unit/Campaign/Service Awards: RMB, COA

 Days of Unauthorized Absence: (157) 891126 - 900502

 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 :

891126   Applicant to unauthorized absence 1701, 891126.

891227   Applicant dropped from rolls and declared a deserter.

 900502:  Applicant apprehended by civil authorities on 2230, 900502 by the Middlebore State Police. Delivered under guard to military authorities on 900503 to Philadelphia Naval Brig. Transferred to MCB Brig on 900508.

090508:  Applicant to confinement.
900516:  Clinical Psychologist evaluation conducted at Naval Hospital Camp Lejeune. Diagnostic Impression, Axis I :Uncomplicated bereavement.
         Recommendation: fit for full duty, aware of and responsible for behaviors and consequences. The patient chose UA rationally, in full knowledge of the consequences. However, the circumstances of his father’s nervous breakdown and subsequent depression with ill health were compelling. The command will need to decide the relative merits of his request for mercy versus the justice suggested by the UCMJ.
                          
900523:  Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 86: Unauthorized absence from 1701, 891126 to2230, 900502 (157 days/apprehended).
900530:  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 Unauthorized absence from 1701, 891126 to 2230, 900502 (157 days/apprehended).

900607:  SJA review determined the case sufficient in law and fact.

900613:  GCMCA, Base Commander, Marine Corps Base, Camp Lejeune, NC, determined 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.

900614:  Applicant from confinement.

950327:  NDRB documentary record review Docket Number MD94-01719 conducted. Determination: discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

 Discussion

The Applicant was discharged on 19900628 under other than honorable conditions in lieu of trial by court-martial (A and B). After a thorough review of all available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

 Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. After a thorough review of Applicant’s case the Board discovered no impropriety or inequity. When the service of a member of the U.S. Marine Corps has met the standard of acceptable conduct and performance, 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. Certain serious offenses warrant separation in order to maintain proper order and discipline. The Applicant’s service was marred by his violation of UCMJ Article 86 (unauthorized absence, 157 days terminated by apprehension) to which he admitted guilt and requested separation in lieu of trial by court-martial. 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. Therefore the Board found his under other than honorable conditions characterization appropriate. Relief is not warranted.

The Applicant contends his ill advised reaction to the stress and concern for his father’s failing health resulted in his unauthorized absence. The Applicant failed to present credible evidence to support his claims of medical necessity in mitigation of his unauthorized absence. The NDRB recognizes that serving in the U.S. Marine Corps is challenging. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country. It must be noted that most members of the Marine’s serve honorably and therefore earn their honorable discharges. In fairness to those members, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due. The NDRB found that the Applicant's service was equitably characterized. 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 Naval service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities. The Applicant submitted the following documentation; seven personal references, proof of employment with San Diego Police Department and specialized training as a fireman, paramedic, and policeman as well as, Microsoft certification. The Board commends the Applicant’s personal achievements and recognized his volunteer work with the police cadets. However, a fter careful consideration the Board concluded the Applicant’s post-service achievements have been insufficient to mitigate his misconduct while in the Naval service. Relief denied.

The following if provided for the edification of the Applicant. The Applicant has exhausted his opportunities for review by the NDRB. 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 5420.174D 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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