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NAVY | DRB | 2004 Marine | MD04-01239
Original file (MD04-01239.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD04-01239

Applicant’s Request
The application for discharge review was received on 20040726. 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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041222. 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. “When I came home on leave after boot camp, I lost my brother, my grandmother, and my father and grandfather had open heart surgery. I know now that I was wrong by not going to my C.O. for help. I never knew my mother and I was not in the right state of mind when my grandmother (who raised me) passed away along with our family business facing bankruptcy because of my grandfather and father’s condition. My brother was a huge loss and I have never faced such mental anguish and bereavement before. But, I wish to fix my past and live on with my life without this huge burden haunting me. ”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Ltr to Board frm Applicant, undated
Applicant’s DD Form 214 (2 copies)
Death Certificate, B_ M_ D_, date of death 990331
Death Certificate. C_ M_ W_, date of death 990422
U. of Alabama Med Ctr discharge certificate dtd 990329
Copies of Applicant’s driver’s license and social security card
Reference statements with completed DD Forms 370 from:
         V_ C. B_, USAF Ret
         D_ C. B_, USMCR
         K_ M. C_
         B_ A. W_, RN
         K_ G_, USAR
         E_ U_
         R_ B. P
         J_ B_
         J_ Y_
         F_ S_
         A_ M_
         J_ S_
         D_ F_
         D_ M_
         T_ P_
         N_ H_
         R_ N_ L_
         M_ A. Y_
         J_ W. W_ Jr.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                981211 - 981216  COG

 Period of Service Under Review :
Date of Enlistment: 981217               Date of Discharge: 991230

 Length of Service (years, months, days):

         Active: 01 00 19                  [Does not exclude lost time]
         Inactive: None

 Age at Entry: 24                          Years Contracted: 4

Education Level: 12                        AFQT: 53

 Highest Rank: PFC                          MOS: 9971

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.8 (1)                       Conduct: 4.8 (1)

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 246

 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 :

990422:  Applicant declared a deserter having been an unauthorized absentee since 1501, 990323 from SOI, MCB, CLNC.

991124:  Applicant apprehended by civil authorities on 991124 and returned to military control.
991208:  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. The Applicant’s statement indicates he was raised by four different stepmothers and had (5) family members die within a month after boot camp. The Applicant indicated he went UA to pay for funeral expenses.

991220:  SJA review determined the case sufficient in law and fact.

991228:  GCMCA [CG, MCBCLNC] 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 19991230 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 19991208, 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 unauthorized absence can be attributed to the stress as a result of family deaths and the potential bankruptcy of the family business. While he may feel that his family issues 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.

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.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

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 P1900.16E), 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 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

 E. 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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