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USMC | DRB | 2006_Marine | MD0600351
Original file (MD0600351.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. MD06-00351

Applicant’s Request
The application for discharge review was received on 20051227 . 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 20061102 . 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 dischar ge 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

 No issues were submitted by the Applicant.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
 Excerpts from Applicant’s Service Record Book (18 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19960906 - 19960923       COG
         Active: None
Period of Service Under Review :
Date of Enlistment: 19960924              Date of Discharge: 19980410

Length of Service (years, months, days):

 Active: 0 1 06 17
         Inactive: None

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

Age at Entry: 24

Years Contracted: 5

Education Level: 12                                 AFQT: 56

Highest Rank: PFC                                    MOS: 5954

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4 . 3 ( 2 )                                Conduct: 4 . 2 ( 2 )

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

971023 :  Counseling: Advised of deficiencies in performance and conduct ( Financial irresponsibility culminating with numerous bounced checks. ), necessary corrective actions explained, and sources of assistance provided. D isciplinary and discharge warning issued.
980113:  Counseling: Applicant given opportunity to consult with a lawyer, provided by the government at no cost, in regard to a pending NJP for violation of Article 107 and 123A of the UC MJ . Applicant d id not choose to exercise the right to refuse NJP.
980407:  Chief of Naval Education and Training, Pensacola, FL, approved the Applicant’s request for administrative discharge in lieu of trial by court-martial and directed a characterization of other than honorable. After consulting with an attorney, the Applicant’s request for administrative discharge was determined to be in substantial compliance with the MARCORSEPMA N.

980410:  DD Form 214: Applicant discharged Under Other Than Honorable Conditions in lieu to trial by court-martial.

 Service Record Book contains a partial Adm inistrative Discharge package.
Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19980410 in li eu of trial by court-martial (A ) 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 ( B and C ). The Board presumed regularity in the conduct of governmental affairs ( D ).
The Applicant requests a character of service upgrade to General (Under Honorable Conditions). The Applicant’s records show that on 19980407, the Chief of Naval Education and Training determined that the Applicant’s request for administrative separation was in substantial compliance with applicable regulations and approved the request. However, in the absence of a complete discharge package, the Board presumed that the Applicant was pending court-martial proceedings and that he properly requested administrative separation to escape trial by court-martial in accordance with MARCORSEPMAN Par. 6419 . The Applicant bears the burden of overcoming this presumption of regularity by presenting any substantial and credible evidence. The Applicant did not provide any documentary evidence to challenge the propriety or equity of the discharge. Therefore, the Board considered the Applicant’s discharge proper and equitable. Relief 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 . Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

C . Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .

D . 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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