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NAVY | DRB | 2004 Marine | MD04-00834
Original file (MD04-00834.rtf) Auto-classification: Denied


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


ex-LCpl, USMC
Docket No. MD04-00834

Applicant’s Request
The application for discharge review was received on 20040416. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. The Applicant requests a documentary record discharge review. The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041022. 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/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. “’Once A Marine, Always A Marine’ is a statement I’ve always believed in. I enlisted into the Marine Corps in hopes for a change in my life, which I received. I served my first four years with motivation and determination. I was honorably discharged. Upon being discharged, I was not clear on my decision. But nine months later, my mind was made up. I re-enlisted for four more years. I was sent to learn a new M.O.S. in Oklahoma, upon an Army base. I knew I had a higher title being a Marine, and I was always quick to brag. My 6 th year in the Marine Corps, I came to face family issues concerning my child's health. I took issues into my own hands, and made the wrong choice and went on unauthorized absence. I made the one mistake that caused my to get an other than honorable discharge.
I am not trying to make an excuse for what I did. I know I was wrong. I learned the hard way. “You don’t know what you’ve got till its gone” is another saying that rings true. I had everything I needed in the Marine Corps. And I would honor the chance to have it all again. My wife was also a Marine, and supports my decision to request for the full 20 years if given the chance. I want to feel the motivation and determination I once felt. I want to serve my country, and help fight terrorism. And I want to be the best Marine I can be. I want to carry that title of being the best. And I will prove all this if I can have the Honor of being in the United States Marine Corps.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214 020212
Copy of DD Form 214 990913

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR(J)                951102 - 951105  COG
          Active: USMC              951106 - 990913  HON      RELADU
          Inactive: USMCR           990914 - 000530  Reenlist

 Period of Service Under Review :
Date of Enlistment: 000531               Date of Discharge: 020212
Length of Service (years, months, days):

          Active: 01 08 12         Does not exclude lost time
         Inactive: None

 Age at Entry: 21                          Years Contracted: 4
Education Level: 12                        AFQT: 41

 Highest Rank: Cpl                          MOS: 3531
Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.2 (9)                       Conduct: 4.2 (9)

 Military Decorations: None
Unit/Campaign/Service Awards: NDSM, GCM, SSDM (2)

 Days of Unauthorized Absence: 136
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 :

990301:  Counseled for deficiencies in performance and conduct. [Financial irresponsibility.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.




001211:  Counseled for deficiencies in performance and conduct. [Violation of Article 86, Lack of proper leadership potential or example.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

001219:  NJP for violation of UCMJ, Article 86:
 Specification 1: UA from 0500 001130 until 0800 001206.
 Awarded forfeiture of $667.00 per month for 2 months, restriction and extra duties for 45 days, reduction to LCpl. Forf susp 6 mos. Not appealed.
010813:  Applicant to UA.
010912:  Applicant declared deserter.
011220:  Applicant from UA (129/s).
020129:  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 violation of the UCMJ, Article 86: Unauthorized absence, 13 August 2001 to 20 December 2001.
020207:  SJA review determined the case sufficient in law and fact.

 020208:  GCMCA [CG, MCB CLNC] 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 20020212 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).
Issue 1. On 20020129, 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.

The Applicant contends that his problems in the Marine Corps can be attributed to his "family issues." While he may feel that his family responsibilities were the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

Concerning reenlistment, the NDRB has no authority to change reenlistment codes or make recommendations to permit reentry into the naval service or any other of the Armed Forces. The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy or Marine Corps. Reenlistment policy of the Marine Corps is promulgated by the Commandant, United States Marine Corps, Code MMEA, 3280 Russell Road, Quantico, VA 22134. Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment. A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.

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 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective
01 September 2001 until Present.

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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