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USMC | DRB | 2005_Marine | MD0500065
Original file (MD0500065.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-PFC, USMC
Docket No. MD05-00065

Applicant’s Request
The application for discharge review was received on 20041006. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions). The Applicant requests a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20050819 . 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 and reason for discharge shall not change. The discharge shall remain Under Other Than Honorable Conditions by reason of separation in lieu of trial by court-martial.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“A desire to rejoin the armed forces again.

In June of 2002, I receive an RE-4 discharge. I am requesting my RE-code be lowered to a RE-3 so that I may rejoin the armed forces, and given a second chance to serve my country honorably. I understand that I should’ve done this the first time, and I realize the mistakes that I have made. I am older and somewhat wiser now, and I want another chance to serve my country honorably.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 1)
Applicant’s Privacy Act wavier, dated September 8, 2004

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19980226 – 19980628               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19980629             Date of Discharge: 20020612

 Length of Service (years, months, days):

 Active: 02 05 10
          Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 542 days
         Confinement:              3 days

 Age at Entry: 17

 Years Contracted: 4

 Education Level: 12                                 AFQT: 66

 Highest Rank: LCpl                                  MOS: 0311

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.7 (7)                                Conduct: 3.2 (8)

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214) : Rifle Expert, National Defense Service Medal, Armed Forces Service Medal, Armed Forces Expeditionary Medal, Sea Service Deployment Ribbon


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 :

990112:  Applicant to unauthorized absence at 0700 on 990112.

990201:  Applicant from unauthorized absence at 0700 on 990201 (20 days/surrendered).

990202:  NJP for violation of UCMJ, Article 86:
         Specification: In that Private First Class T_ J. M_ (Applicant), did, on or before 0700, 20 Jan 1999, without authority, absent himself from his unit, to wit: India Co, 3dBn, 6 th Mar, 2dMarDiv, Camp Lejeune, North Carolina and did remain so absent until on or about 0700, 1 Feb 1999.
         Award: Forfeiture of $251 per month for 1 month, restriction and extra duty for 14 days. Forfeiture suspended for 6 months. Not appealed.

990401:  Counseling: Advised of deficiencies (Eligible but not recommended for the promotion period (Apr 99) because [the Applicant is] awaiting NJP for being UA), source of assistance provided. Applicant chose not to make a statement.

991119:  Applicant to unauthorized absence.

991120:  Applicant from unauthorized absence.

000104:  NJP for violation of UCMJ, Article 86:
         Specification: In that Lance Corporal T_ J. M_, U.S. Marine Corps, did, on board the USS BATAAN, on or about 0200, 19 November 1999, without authority absent himself from his unit, to wit: India Co, BLT 3/6, 22 MEU, II MEF, and did remain so absent until on or about 1800, 20 November 1999 (1 day).
         Award: Forfeiture of $273 per month for 1 month, restriction and extra duty for 14 days. Not appealed.

000726:  Counseling: Advised of deficiencies (Eligible but not recommended for promotion to Cpl for the promotion period of August 2000 because Applicant was not ready for increased responsibilities. Specifically, SNM needs to be more responsible for personal gear and equipment as well as actions, SNM also needs to develop and exercise better time management skills to be where he needs to be in an orderly manner. These of which all primary characteristics for anyone to be in a leadership role responsible for the welfare of others. SNM needs to take more initiative as well as become a more active member of the Platoon.), source of assistance provided. Applicant chose not to make a statement.

001107:  Applicant to unauthorized absence at 0700 on 001107.

001116:  Applicant from unauthorized absence at 0700 on 001116 (9 days/surrendered).

001128:  NJP for violation of UCMJ, Article 86:
         Specification: 0701, 011107 to 0701, 001116, w/o authority, abs fr this org.
         Award: Forfeiture of $563 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. Forfeiture suspended for 6 months. Not appealed.

001130:  Applicant to unauthorized absence at 0700 on 001130.

 001231:  Report of Declaration of Deserter (DD Form 553). Applicant declared a deserter on 001231 having been an unauthorized absentee since 0700, 001130 from 3d Battalion, 6 th Marines, Camp Lejeune, NC.
020502:  Applicant from unauthorized absence on 020502 (519 days/apprehended by civil authorities).

 020503:  Applicant to pretrial confinement 2140, 020503.

020506:  Applicant released from pretrial confinement.

 020509:  Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 86: Unauthorized absence from 001130-020502.

020523:  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: In that Private First Class T_ J. M_, U.S. Marine Corps, Headquarters and Support Battalion, Marine Corps Base, Camp Lejeune, NC on or about 30 November 2000, without authority, absent himself from his unit to wit: 3 rd Battalion, 6 th Marine Regiment, located at Camp Lejeune, North Carolina and did remain so absent until he was apprehended on or about 2 May 2002.

020529:  Commanding Officer, Headquarters and Support Battalion, MCB, Camp Lejeune, NC, recommended the approval of the Applicant’s request.

020604:  SJA review determined the case sufficient in law and fact.

020607:  GCMCA, Commander, Marine Corps Base, Camp Lejeune, NC, directed the Applicant's discharge with a under other than honorable conditions in lieu of trial by court-martial.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020612 by reason of separation in lieu of trial by court-martial (A and B) with a service characterization of under other than honorable conditions. 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 (C and D).

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 three nonjudicial punishment proceedings for violations of Article 86 of the UCMJ. The Applicant was in an unauthorized absence status for a total of 542 days during four different periods. The Applicant went to unauthorized absence status on 20001130 and did not return to military control for 519 days, after being apprehended by civil authorities. The Applicant’s 519 day unauthorized absence is considered a serious offense. 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 Marine Corps and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

The Applicant contends that he is “older and wiser now.” While he may feel that his immaturity was 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.

The following is provided for the edification of the Applicant. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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 Naval service. The NDRB is authorized to consider 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. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided any post-service documentation for the Board to consider. Relief on this basis is not warranted.

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 P1900.16F), 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 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 V, Para 502, Propriety .

D. 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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