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USMC | DRB | 2005_Marine | MD0501270
Original file (MD0501270.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. MD05-01270

Applicant’s Request
The application for discharge review was received on 20050725. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to uncharacterized. 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 20060316. 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 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:

“less than 180 days of active service; and discharged under other than honorable conditions.”
Documentation
In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Army Review Board Application (7 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: None
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20000426             Date of Discharge: 20010426

 Length of Service (years, months, days):

 Active: 00 06 09 (Excludes lost time)
          Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 172 days
         Confinement:              None

 Age at Entry: 20

 Years Contracted: 4

 Education Level: 12                                 AFQT: 75

 Highest Rank: PFC                                   MOS: 9900

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.8 (3)                                Conduct: 3.8 (3)

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): None


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 :

000812:  Applicant to unauthorized absence at 1501 on 000812.

000912:  Applicant declared a deserter.

010131:  Applicant from unauthorized absence at 1730 on 010131 (172 days/surrendered).

010312:  Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 86: In that Private D_ K. L_(Applicant) U.S. Marine Corps, School of Infantry, Headquarters and Support Battalion, Marine Corps Base, did on or about 12 August 2000, without authority, absent himself from his organization, to wit: Headquarters and Support Battalion, located at Camp Lejeune, North Carolina, and did remain so absent until on or about 31 January 2001.

010316:  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 D_ K. L_(Applicant) U.S. Marine Corps, School of Infantry, Headquarters and Support Battalion, Marine Corps Base, did on or about 12 August 2000, without authority, absent himself from his organization, to wit: Headquarters and Support Battalion, located at Camp Lejeune, North Carolina, and did remain so absent until on or about 31 January 2001.

010403:  Commanding Officer, Headquarters and Support Battalion, School of Infantry, Training Command, Camp Lejeune recommended disapproval of Private L_ [Applicant’s] request for separation in lieu of trail by court-martial.

010405:  Commanding Officer, School of Infantry, Training Command, Camp Lejeune, recommended disapproval of Applicant’s request for separation in lieu of trial. Commanding Officer’s comments: “While the health conditions of Private L_ [Applicant’s] wife is regrettable, an appropriate method to redress the situation was through Humanitarian Transfer [or] hardship discharge – not deserting. Further, he is clearly more concerned with his entrepreneurial activities than completing his sworn obligation. This matter should be addressed by a trail by Special Court Martial or through a pre-trial agreement with the convening authority.”

010411:  SJA review determined the case sufficient in law and fact and recommended the Applicant’s request be approved.

010420:  GCMCA, Commander, Marine Corps Base, Camp Lejeune, approved the Applicant's request for discharge 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 20010426 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).

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 stated he understood the elements of the offenses with which he was charged. He admitted he was guilty of violating Article 86, unauthorized absence from on or about 12 August 2000 until on or about 31 January 2001. 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 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 contends that he should have received an uncharacterized (entry level separation) because he served, “less than 180 days of active service.” By regulation, members notified of intended recommendation for discharge within the first 180 days of enlistment are eligible for an uncharacterized or entry-level separation characterization of service. The Applicant enlisted on 20000426 and returned from unauthorized absence on 20010131. Though the Applicant accrued 172 days of lost time as a result of unauthorized absence, the Applicant was not notified of an intent to separate him within 180 days of his enlistment. In fact, the Applicant requested separation in lieu of trial. However, even if the Applicant had not requested separation but had been administratively recommended for separation within 180 days of enlistment, an entry level separation would not have been appropriate. Entry level separations are not appropriate if there are unusual circumstances regarding a servicemember’s performance or conduct that merit another characterization. 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 the Applicant’s 172-day unauthorized absence. 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 Therefore the Board found his under other than honorable conditions characterization appropriate. Relief is not warranted.

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 P1900.16E), 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 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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