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NAVY | DRB | 2004 Marine | MD04-01444
Original file (MD04-01444.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD04-01444

Applicant’s Request
The application for discharge review was received on 20040913. The Applicant requests the characterization of service received at the time of discharge be changed to honorable or 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 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:

“I request my discharge be upgraded to Honorable or General Under Honorable conditions. My reentry code needs to be changed so that I can enlist in the Reserve.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of the Applicant’s DD Form 214
Criminal Records Check, not dated
Letter from the Applicant, not dated and not signed
Letter of recommendation from M_ A. P_, dtd March 31, 2004
Letter of recommendation from R_ G. S_, dtd November 24, 2003


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                990820 - 990919  COG

 Period of Service Under Review :
Date of Enlistment: 990920               Date of Discharge: 010209

 Length of Service (years, months, days):

         Active: 00 08 07
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 68

 Highest Rank: PFC                          MOS: None

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.4 (3)                       Conduct: 3.4 (3)

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 314

 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 :
        
000310:  Counseled for deficiencies in performance and conduct. [Specifically, for being UA from 26 Jan 2000 – 15 Feb 2000.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000310:  NJP for violation of UCMJ, Article 86: UA (AWOL) from 0729, 000126 to 1400, 000215.
 Awarded: Restriction to the limits of place of mess, billeting, duty, and worship, and most direct route to and from, without suspension from duty for 45 days. Forfeiture of $563.00 pay per month for 2 months (total forfeiture $1126.00). Forfeiture of $563.00 pay per month for 2 months suspended fro 6 months, at which time, unless sooner vacated, will be remitted without further action. (Total forfeiture suspended $1126.00). Not appealed.
000313:  Applicant to UA (AWOL) at 0500, 000313.

000413:  Applicant declared a deserter as of 0500, 000313.

000417:  Applicant from UA (AWOL) at 1200, 000417 when Applicant surrendered.

000419:  Counseled for deficiencies in performance and conduct. [Specifically, for being UA from 10 Mar – 17 Apr 2000 and breaking restriction.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000424:  Applicant declared a deserter on 000424 having been an unauthorized absentee since 0715, 000424 from MCD Ft Leonard Wood, MO.

010108:  Applicant surrendered to military authorities on 010107 (1600) at MCD, Ft Leonard wood, MO. Returned to military control 010108. Delivered to Security Battalion, MCB Quantico, VA.

010111:  Charges preferred against the Applicant. Violation of the UCMJ, Article 86. Specification: In that Private First Class M_ D. M_ , U.S. Marine Corps, Security Battalion, Marine Corps Base, Quantico, Virginia, on active duty, did, on or about 24 April 2000, without authority, absent himself from his organization, to wit: Marine Corps Detachment located at Fort Leonard Wood, Missouri, and did so remain so absent until on or about 7 January 2001.

010111:  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.

010202:  SJA review determined the case sufficient in law and fact.

010202:  GCMCA, Commanding General, Marine Corps Base, Quantico, VA, 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 20010209 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).

 On 20010111, 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.

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.

When the service of a member of the U.S. Navy has been honest and faithful, 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. The Applicant’s service was marred by a nonjudicial punishment proceeding for violation of Articles 86 of the UCMJ. In addition, the Applicant was twice declared a deserter and was UA for a total of 314 days during less than 17 months of service. 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. Navy and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, 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, is considered. The applicant provided one letter of recommendation from his employer and a college professor, and an undated criminal records check as documentation of his post-service. The applicant's efforts need to be more encompassing than those provided. For example, the applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, in order for consideration for clemency based on post-service conduct. At this time, the applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in his characterization of discharge. Therefore, no relief will be granted.

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. The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time. 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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