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USMC | DRB | 2005_Marine | MD0500031
Original file (MD0500031.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD05-00031

Applicant’s Request
The application for discharge review was received on 20040922. The Applicant requested the characterization of service received at the time of discharge be changed to honorable. The Applicant requested 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 20050107. 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/Conduct triable by courts-martial (request for discharge for the good of the service), authority: MARCORSEPMAN Par. 6419.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


 Issues, as stated

 The Applicant did not submit any issues for the Board’s consideration.

Documentation
The Applicant did not provide any additional documentation for the Board to review. He marked the box "WILL NOT BE SUBMITTED. PLEASE COMPLETE REVIEW BASED ON AVAILABLE SERVICE RECORDS" in the “SUPPORTING DOCUMENTS” section of his DD Form 293.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR (J)               891021 - 900916  COG

 Period of Service Under Review :
Date of Enlistment: 900917               Date of Discharge: 920220

 Length of Service (years, months, days):

         Active: 00 07 17 (Accounts for lost time.)
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 39

 Highest Rank: PFC                          MOS: 2531 (Field Radio Operator)

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (2)                       Conduct: 2.7 (3)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: 217

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/Conduct triable by courts-martial (request for discharge for the good of the service), authority: MARCORSEPMAN Par. 6419.

 Chronological Listing of Significant Service Events :

891019:  Initial enlistment contract documents admission of pre-service marijuana experimentation. Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

910504:  Applicant to UA (AWOL) 0001, 910504 after he failed to report to CG, III MEF, FMF PAC.

911212:  From UA (AWOL) at 1742, 911212 after Applicant was apprehended by civil authorities in Liberty, N. C. Returned to military control 1530, 911213. Delivered to HqSptBn, Camp Lejeune.
920116:  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 than honorable conditions. The Applicant admitted guilt to the following violations of the UCMJ, Article 86: unauthorized absence, from 4 May 1991 until apprehended on 26 November 1991.

920207:  GCMCA [Base Commander, Marine Corps Base, Camp Lejeune] 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 19920220 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).

The Applicant introduced no decisional issues for consideration by the Board.

In the Applicant’s case, the Board discovered no impropriety or inequity and considers his discharge proper and equitable . A service characterization of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a member of the United States Marine Corps. The Applicant’s record is devoid of any evidence he was not responsible for his conduct or that he should not be held accountable for his actions. The Applicant’s service record is marred by being in an unauthorized absence status for over 7 months, being declared a deserter, and having to be apprehended before he returned to the Marine Corps . The Applicant’s summary of service clearly reflects the his disobedience of the orders and directives regulating good order and discipline in the Marine Corps, and demonstrated he was unsuitable for further service. In a signed statement, the Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial. He consulted with counsel and was fully advised of the implications of his request. The Applicant understood that if discharged under other than honorable conditions, it might deprive him of virtually all veteran’s benefits based upon his current enlistment. He also understood he might encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received may have a bearing. The Applicant stated he understood the elements of the offenses with which he was charged. He admitted he was guilty of violating Article 86: unauthorized absence. A discharge upgrade to honorable would be inappropriate. Relief denied.
 
 T here 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 such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. Evidence of continuing educational pursuits, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct. At this time, the Applicant has not provided any documentation for the Board to consider in order to mitigate his misconduct while on active duty.
 
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 additional documentation to support any claims of post-service accomplishments 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 P1900.16D), effective 27 Jun 89 until 17 Aug 95.

 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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