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USMC | DRB | 2006_Marine | MD0600245
Original file (MD0600245.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. MD06-00245

Applicant’s Request
The application for discharge review was received on 20051117 . 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 personal appearance hearing discharge review before a traveling panel closet to Vineland, NJ . The Applicant did not designate a representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing and that the Board does not travel; all hearings are held in the Washington National Capital Region.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20061005 . After a thorough review of the available 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 wood like to join the military again and I would like to vote, and just have a clean record and good citizen. ”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19980618 - 19990 622       COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 19990 623              Date of Discharge: 20001222

Length of Service (years, months, days):

 Active: 0 1 0 6 00 (Does not exclude lost time)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 319
         Confinement:              None

Age at Entry: 19

Years Contracted: 4

Education Level: 12                                 AFQT: 35

Highest Rank: PFC                                    MOS: 9900

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: NA*                           Conduct: NA*
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Rifle Marksman

 *Not Applicable


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 :

980618:  Applicant granted RS-level MGD-waiver.

991217:  Applicant to unauthorized absence. [Extracted from DD 214]

000110:  Applicant from unauthorized absence. [Extracted from DD 214]

 000114 :  Applicant to unauthorized absence at 0 731 on 000114 .
001103 :  Applicant from unauthorized absence at 1 000 on 00 1103 ( 294 days/surrendered).
001103:  Report of Return of Deserter. Applicant surrendered to military authorities on 001103 (1000) at HQSPTBN, MCB, CAMP LEJEUNE, NC.

001222:  DD Form 214: Applicant discharged under other than honorable conditions in lieu of trial by court-martial , authority MARCORSEPMAN para 6419.


Service Record Book did not contain the Adm inistrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20001222 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 available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D). The Board presumed regularity in the conduct of governmental affairs (E).

The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. In the Applicant’s case, in the absence of a complete discharge package and without credible and substantial evidence to refute the Board’s presumption, the Board invoked the presumption of regularity. Specifically, the Board presumed that the Applicant requested discharge to escape trial by court-martial; that the Applicant had the elements of the offense(s) for which he was charged fully explained by counsel; that the Applicant admitted guilt to the offense(s); that the Applicant had a complete understanding of the negative consequences of his actions and; that the Applicant’s request for discharge was approved by proper authority.

The Applicant requests that his discharge be changed so that he can vote, reenlist and have a clean record. 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 or inequity after a review of Applicant’s case. There is no law or regulation which provides that a discharge may be upgraded to facilitate voting, reenlistment, education or employment opportunities. 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 Naval service. However, 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 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. Regarding the Applicant’s stated desire to reenlist, the Applicant should be aware that a request for a waiver with respect to the Applicant’s RE-code can be submitted during the processing of a formal application for reenlistment through a recruiter. Relief based on the Applicant’s issue 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 .

E. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs .

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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