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NAVY | DRB | 2004 Marine | MD04-01270
Original file (MD04-01270.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD04-01270

Applicant’s Request
The application for discharge review was received on 20040806. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record 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. “I am requesting to overturn my discharge status from Other Than Honorable to an Honorable Discharge. My current discharge status is unjustifiable due to medical conditions that were not improving and that no assistance was granted.

Approximately one year prior to my Recruitment Duty Mission, my health began to decline. Assistance was requested to help improve my health and aid in my recovery. I never wanted or requested to be discharged, only to be placed in a reduced stress environment. I was told that I was medically fit for Recruitment Duty by the Commanding General, even though the doctors had recommended otherwise.

Not only did I have to be concerned about my health, but I also had to endure inappropriate and unnecessary ridicule in the workplace because of it. This only increased the stress and magnified my medical conditions.

Unfortunately, I felt I had no other choice but to leave the Marine Corp in order to protect and to improve my health and well being.

I served proudly as a Marine for almost ten years and had planned on serving until my retirement. I have received a Navy Marine Corp Achievement Medal, two certificates of commendation, four Meritorious Masts, three good conduct medals, and five letters of appreciation. I had a flawless record with numerous achievement awards as mentioned above until this Article 90 was filed.

 I thank you for your consideration .”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Fourteen pages of commendatory material from Applicant’s service record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              940124 - 991115  HON
         Inactive: Cannot be determined from available records

 Period of Service Under Review :
Date of Enlistment: 991116               Date of Discharge: 030919

 Length of Service (years, months, days):

         Active: 03 10 04
         Inactive: None

 Age at Entry: 29                          Years Contracted: 4

Education Level: 12                        AFQT: Unknown

 Highest Rank: SSgt                         MOS: 6027

 Final Enlisted Performance Evaluation Averages (number of marks):

All FITREPs were available for review

 Military Decorations: None

 Unit/Campaign/Service Awards: NMCAM, CC (2), MM (4), GCM (3), LA (4), SSDR (2), NDSM (2)

 Days of Unauthorized Absence: None

 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 :

030908:  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 could be under other than honorable conditions. Applicant requested discharge under honorable conditions (general). The Applicant admitted guilt to the following violation of the UCMJ, Article 90: On 030709, disobeyed order of Major L_ to perform his duties as a canvassing recruiter.

030910:  CG, MCRD/ERR relieved Applicant for cause due to his refusal to recruit.

030911:  SJA review determined the case sufficient in law and fact.

030911:  GCMCA [CG, MCRD/ERR] 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 20030919 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. The statements by the Applicant that he was not medically qualified to perform the duties of a canvassing recruiter do not refute the presumption of regularity in this case. On 20030908 the Applicant, having consulted with counsel certified under UCMJ Art 27b, requested discharge for the good of the service to escape trial by court-martial. 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 positive aspects of the Applicant’s record do not mitigate his misconduct. 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’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question. No such inequity or impropriety is evident during the Applicant’s enlistment. Additionally, 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. Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his 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 90, disobey a lawful order from a commissioned officer.
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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