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USMC | DRB | 2005_Marine | MD0501494
Original file (MD0501494.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. MD05-01494

Applicant’s Request
The application for discharge review was received on 20050908. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. 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 20060612. 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:

“I would like it upgraded because I have abided by all Laws, Rules and Regulations of this country and government. As a civilian I have been an outstanding citizen. I would like to be eligible for some benefits so that my time in Service wasn’t wasted.”

 Documentation
In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 1 and 4)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19980831 - 19980909      COG
          Active: None

 Period of Service Under Review :
Date of Enlistment: 19980910             Date of Discharge: 19990813

 Length of Service (years, months, days):

 Active: 00 11 04 (Does not exclude lost time.)
          Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 52 days
         Confinement:              None

 Age at Entry: 19

 Years Contracted: 5

 Education Level: 12                                 AFQT: 52

 Highest Rank: PFC                                   MOS: 9971

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.1 (2)                                Conduct: 2.7 (3)

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Marksmanship Rifle Badge


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 :

980910:  Entered active duty.

990326:  Applicant to unauthorized absence at 0616 on 990326.

990425:  Applicant declared a deserter.

990517:  Applicant from unauthorized absence at 1030 on 990517 (52 days/surrendered).

990629:  Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 86: In that Private First Class D_ S. G_ Jr (Applicant), U.S. Marine Corps, on active duty, Headquarters and Headquarters Squadron, Marine Corps Air Station, Cherry Point, North Carolina, did, on or about 26 March 1999, without authority, absent himself from his unit, to wit: Aviation Maintenance Squadron 2, Marine Aviation Training Support Group, Naval Aviation Technical Training Center, located at Naval Air Station, Pensacola, Florida, and did remain so absent until on or about 17 May 1999.

990702:  Charges referred to special court-martial.

990723:  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: UA from 26 March 1999 to 17 May 1999.

990810:  SJA review determined the case sufficient in law and fact.

990810:  GCMCA, Commanding General, Marine Corps Air Station, Cherry Point, NC directed the Applicant's 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 19990813 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).
The Applicant’s record contains a Request For Separation In Lieu Of Trial By Court-Martial signed by him and his counsel on 19990723. This request contains the following:
•         That the request was based on his violation of UCMJ Article 86 Unauthorized absence, to which he admitted guilt;
•         That he consulted with counsel who was certified in accordance with UCMJ Article 27(b);
•         That the Applicant was entirely satisfied with counsel’s advice;
•         That counsel explained the elements of the offenses;
•         That the Applicant viewed the evidence relating to the offense;
•         That characterization of service may be under other than honorable conditions;
•         That a service characterization of under other than honorable conditions may deprive the Applicant of virtually all rights as a veteran, and he may expect to encounter substantial prejudice in civilian life.
The Separation Authority subsequently approved the Applicant’s request for separation in lieu of trial by court-martial on 19990810. What is more, the Staff Judge Advocate review determined that the Applicant’s request for separation in lieu of trial by court-martial was sufficient in law and fact. Since the Board could find no evidence of impropriety with the Applicant’s discharge process, relief on this basis is not warranted.

The Applicant is advised that the Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits or enhancing employment and educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. This issue does not serve to provide a foundation upon which the Board can grant relief. Relief on this basis is denied.

While 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 Marine Corps, the Board 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. Evidence of continuing educational pursuits, verifiable employment records, documented community service, and certification of non-involvement with civil authorities are examples of documentation that should have been provided to receive consideration for relief based on post-service conduct. At this time, the Board found that the Applicant’s statements concerning post-service conduct, without documented evidence, do not mitigate the offense for which he was discharged. Relief on this basis is denied.

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 documentation to support post-service accomplishments or any other evidence related to the discharge 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 P1900.16E), 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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