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NAVY | DRB | 2004 Marine | MD04-01472
Original file (MD04-01472.rtf) Auto-classification: Denied


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


ex-PFC, USMC
Docket No. MD04-01472

Applicant’s Request
The application for discharge review was received on 20040921. The Applicant requested the characterization of service received at the time of discharge be changed to general/under honorable conditions. The Applicant requests a documentary record review. The Applicant did not list a representative on his 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. “For reenlistment, I was young and didn’t know what I had at the time. I am wanting to join the United States Marine Corps. I really need to upgrade my status, so that I may reinlist. I really want to serve my country in its time of need.
 I know that I was not in long, but please don’t punish me further by denying me the chance of serving my country the way I want to. Please find it in your hearts to upgrade my status so that I may join the military soon. You will not regret it.”
Documentation
The Applicant did not provide any additional documentation for the board to consider during the deliberation of his case.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active:                            None                       HON
          Inactive: USMCR (J)               941022 - 950801  COG
Period of Service Under Review :
Date of Enlistment: 950802               Date of Discharge: 961007

 Length of Service (years, months, days):
         Active: 01 01 26 (Accounts for lost time)
          Inactive: None
Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 69

 Highest Rank: LCpl                         MOS: 3381 (Food Service Specialist)
Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.0 (3)                       Conduct: 3.6 (3)
Military Decorations: None

 Unit/Campaign/Service Awards: NDSM
Days of Unauthorized Absence: 960609-960617 (08)

 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 :

960610:  Applicant UA(AWOL) from 0630, 960609.

960618:  Applicant from UA(AWOL) 1200, 960617, apprehended by military authority.


960627:  NJP for violation of UCMJ, Article 86: … without authority, absent himself from his unit …
 Awd red to PFC/E-2, forf of $490.00 per month for 2 months, and 30 days correctional custody. Forf susp for 6 mos. Not appealed.
960701:  Counseled for deficiencies in performance and conduct. [Misconduct.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960924:  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: … without authority, fail(ed) to go at the time prescribed to his appointed place of duty … , and Article 123a: … with the intent to defraud, utter six (6) worthless checks … for a combined total amount of ($564.97).
961004:  SJA review determined the case sufficient in law and fact.

 961007:  GCMCA [Commanding General, 2d Force Service Support Group] 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 19961007 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 24 September 1996, the Applicant requested discharge for the good of the service to escape trial by court-martial. In the request the Applicant noted 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 the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

The Board found that the Applicant’s age, education level, and test scores qualified him for enlistment. While he may feel that his youth and immaturity were factors that contributed to his actions, the record clearly reflects his disregard for the requirements of military discipline and demonstrated that he was unfit for further service. The record is devoid of any evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

The NDRB recognizes serving in the Marine Corps is very challenging. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve our country. It must be noted most Marines serve honorably; thereby, earning honorable discharges. In fairness to those Marines, commanders and separation authorities are tasked to ensure the undeserving receive no higher a service characterization than is due. While the NDRB respects the fact that the Applicant has a strong desire to reenlist to serve our “country in its time of need,” his prior service is equitably characterized as being performed under other than honorable conditions. An upgrade to general under honorable conditions would be inappropriate. Relief denied.

 The NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces. Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment. A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.


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 P1900.16E), 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; and Article 123a, Making, drawing, or uttering check, draft, or order without sufficient funds .
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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