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NAVY | DRB | 2004 Marine | MD04-00798
Original file (MD04-00798.rtf) Auto-classification: Denied


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


ex-PFC, USMC
Docket No. MD04-00798

Applicant’s Request
The application for discharge review was received on 20040414. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge review. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that he was approaching the 15-year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington D.C. area. Applicant did not respond

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041008. 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 CONDITIONS OTHER THAN HONORABLE/Separation in lieu of trial by court-martial, authority: MARCORSEPMAN Par. 6419.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION


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

 1. “I am going to college and want to work in the legal part of the Government. I am getting a legal studies degree and feel it will hurt me in futures jobs with the government with this type of discharge.” I have proven to be a great citizen and person in the Community. I feel I have made a bad choice in life and don’t’ want this hurt me. I regret my decisions in the past and is not normal for my nature and people that know me. I loved being a Marine but my father forced me into the military. When I might have chosen a different Route. I hope you can help with this upgrade. I feel I am a great student and feel at this point in my life I can be a great Paralegal for the Government. I want to prove I am a good person. I will be forever thankful and I love this county and what it stands for.

 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)               840613 - 840916  COG

 Period of Service Under Review :
Date of Enlistment: 840917               Date of Discharge: 890906
Length of Service (years, months, days):

          Active: 03 11 20         Does not exclude lost time
          Inactive: None
Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 44
Highest Rank: PFC                          MOS : 0800, Basic Artilleryman

 Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: 2.8 (3)                       Conduct: 4.1 (2)

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

 Days of Unauthorized Absence: 850422-850424 (2); 850524-850604 (11); 850716-890710 (1455)
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER CONDITIONS OTHER THAN HONORABLE /Separation in lieu of trial by court-martial, authority: MARCORSEPMAN Par. 6419.
Chronological Listing of Significant Service Events :

840612:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
850226:  Applicant to medical desiring separation on basis “unfit for military life”. Referred to psychology.
850226:  MCSSS, Camp Johnson Branch Clinic: A/P: Probable personality disorder, Bldg 15 Psych routine.

 850312:  Psychology, Branch Medical Clinic: Applicant referred by CMO, Camp Johnson Branch Clinic. Only partial evaluation found in service record.

 850422:  Applicant to unauthorized absence 0631, 850422.
850424:  Applicant from unauthorized absence 0730, 850424 (2 days/surrendered).
850513:  NJP for violation of UCMJ, Article 86:
 Specification: Unauthorized absence 0631, 850422 to 0730, 850424.
 Awarded forfeiture of $100.00 per month for 1 month, restriction and extra duties for 14 days. Not appealed.
850524:  Applicant to unauthorized absence 1200, 850524.
850604:  Applicant from unauthorized absence 2215, 850604 (11 days/surrendered).
850716:  Applicant to unauthorized absence 0645, 860716.

 850816:  Applicant declared a deserter having been an unauthorized absentee since 0645, 890710 from 1 st Bn, 10 th Mar, 2d MarDiv, FMF, Camp Lejeune, NC.
890710:  Applicant from unauthorized absence.

 890711:  Applicant found fit for confinement.
890711:  Applicant to confinement.
890724:  Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 86: Unauthorized absence from 850716 to 890710 (1455 days).
890823:  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 850716 to 890710 (1455 days).
890823:  SJA review determined the case sufficient in law and fact.
890824:  Applicant from confinement.

 890830:  GCMCA [Commanding General, 2d Marine Division, FMF, 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 conditions other than honorable by reason of conduct triable by courts-martial.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

 Discussion

The Applicant was discharged on 19890906 under conditions other than honorable 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).
Issue 1: The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested in the issue. In a signed statement, the applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial. He consulted with counsel and was fully advised of the implications of his request. The applicant understood that if discharged under other than honorable conditions, it might deprive him of virtually all veterans' benefits based upon his current enlistment, and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received there from may have a bearing. The applicant stated he understood the elements of the offenses with which he was charged. He admitted he was guilty of violating UCMJ Article 86: Unauthorized absence. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. In the Applicant’s case, the Board discovered no impropriety or inequity; thereby, considering the Applicant’s discharge proper and equitable. The Applicant’s discharge characterization accurately reflects his service to his country. No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged. Relief denied.

T here 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. However, 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. Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. Evidence of continuing educational pursuits, a positive employment record, a drug-free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted. The Board appreciates the Applicant’s efforts to improve his life and his involvement in his local community’s counter narcotic efforts and encourages him to continue his participation. At this time, the Applicant has not provided sufficient verifiable documentation of post-service conduct to mitigate his misconduct while on active duty. Relief is not warranted.

The following if provided for the edification of the Applicant. The NDRB has no authority to provided additional review of this case since Applicant’s discharge occurred more than 15 years ago. 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 P1900.16C), Change 2, effective 15 May 84 until 26 Jun 89.
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      

s.

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