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USMC | DRB | 2005_Marine | MD0500260
Original file (MD0500260.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD05-00260

Applicant’s Request
The application for discharge review was received on 20041129. The Applicant requests 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 any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050228. 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

 Applicant’s issues, as stated on the application:

1. “I have been serving in the Nevada Army National Guard (honorably) and my unit and myself are getting deployed to Afghanistan in January. I would greatly appreciate the chance to upgrade my discharge from the Marine Corps to Honorable or General under Honorable Conditions. I am now married with 3 children, have not been in any trouble since my stent in the Marine Corps, and would like to erase this blemish from my record.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Memorandum from Applicant dated November 12, 2004


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                900507 - 901114  COG

 Period of Service Under Review :
Date of Enlistment: 901115                        Date of Discharge: 930218

 Length of Service (years, months, days):

         Active: 02 03 04 (Does not exclude lost time)
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 69

 Highest Rank: LCpl                         MOS: 7051

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.4 (5)                       Conduct: 4.2 (5)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: 3

 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 :

920417:  Counseled for deficiencies in performance and conduct. [Not being at your place of duty and not reporting to work on time.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
920717:  NJP for violation of UCMJ, Article 92: Wrongfully wearing unserviceable uniform.
 Awarded forfeiture of $100.00 per month for 2 months, restriction and extra duties for 30 days, reduction to PFC (forfeiture of $100.00 for one month and reduction suspended for 6 months). Not appealed.
920728:  As a result of a medical evaluation, Applicant recommended for Level III alcohol rehabilitation treatment. Applicant was diagnosed as alcohol dependent by a medical doctor on 920713.
920930:  Discharged from Level III rehabilitation treatment.

921204:  Vacate suspended punishment from NJP dated 920717.

 930128:  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 he understood the elements of the offenses. He further certified an 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: UA from 921130 to 921203; and Article 92: Violated lawful general order by having weapons in his POV.

930129:  SJA review determined the case sufficient in law and fact.

930129:  GCMCA [CG, 3d MAW] 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 19930218 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 19930128, the Applicant requested discharge for the good of the service to escape trial by court-martial. In the request the Applicant certified an 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: UA from 921130 to 921203; and Article 92: Violated a lawful general order by having weapons in his POV. The Applicant also had a previous nonjudicial punishment for disobedience of orders. 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. Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question. No such inequity or impropriety occurred 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. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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. 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, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that may be provided to receive consideration for relief, based on post-service conduct.

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 P1900.16D), 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; and Article 92, disobey a lawful order.
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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