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USMC | DRB | 2006_Marine | MD0600583
Original file (MD0600583.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. MD06-00583

Applicant’s Request
The application for discharge review was received on 20060320 . 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 2007010 3 . 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.

The NDRB did note administrative error(s) on the original DD Form 214. Block 12c, Net Active Service This Period, should read: “01 08 04.” Block 29, Dates of Time Lost This Period, should read: “20050506-20050608 (32), 20050204-20050504 18 (89).” The Commandant, Headquarters USMC, Quantico, VA, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.





PART I - ISSUES AND DOCUMENTATION


Decisional Issues
No decisional 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 (Member 1)
Applicant’s DD Form 214 (Member 4)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    20021003 - 20030622       COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 20030623              Date of Discharge: 20050628

Length of Service (years, months, days):

 Active: 0 2 00 0 5 (Does not exclude lost time)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 89
         Confinement:              32

Age at Entry: 18

Years Contracted: 4

Education Level: 12                                 AFQT: 58

Highest Rank: PFC                                    MOS: 9900

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 2 . 6 ( 2 )                       Conduct: 1 . 7 ( 3 )
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): National Defense Service Medal, Rifle Expert 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 :

050511 :  Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 86: Unauthorized absence (UA) from 050204 to 050504.

0 50513 :  Charges referred to s pecial court-martial.
0 50525 :  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 offense for which he was charged and that he understood the elements of the offense. W ith the exception of the fourth (apprehension) element, the Applicant admitted he was guilty of th e offense. He further underst ood that he may be deprived of virt ually all rights as a veteran under both Federal and State legislation and that characterization of service may be under other than honorable conditions. The Applicant admitted guilt to the following violation of the UCMJ, Article 86 : In that Private First Class R_ M. S_, did, on or about 040204, without authority, absent himself from his unit, to wit: Headquarter and Support Battalion, School of Infantry, Marine Corps Base, located at Camp Pendleton, CA, and did remain so absent until on or about 050504.

050616:  Commanding Officer recommended approval of Applicant’s request for separation in lieu of trial and recommended a characterization of under other than honorable conditions.
          “ Private First Class S_ (Applicant) has been, and continues to be, confronted by a number of significant and recurring life issues. Most consequentially, his mother committed suicide after learning of his desire to join the Marine Corps. He carries the heavy emotional baggage of his involvement with his mother’s actions as a palpable weight on his soul. While in boot camp and MCT, he endured several physical setback s that added to his dilemma s. Additional familial problems after his mother’s suicide complete the list of aggravating circumstances. Private First Class S_’s significant emotional and physical burdens make him of limited value to the Marine Corps. I do not believe he would be able to function effectively as a Marine and would carry significant risk of continued difficulties. Consequently, I believe we should separate this Marine in lieu of trial with a characterization of service as other than honorable. ”

0 50621 :  SJA review determined the case sufficient in law and fact.
050623 :  GCMCA, Commanding General , approved the Applicant's request for separation in lieu of trail and directed a characterization of under other than honorable conditions.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20050628 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 requested separation to escape trial by court-martial. 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 an 89-day period of unauthorized absence. The Applicant’s violation of Article 86, unauthorized absence, is the commission of a serious offense. 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 and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

The following is provided for the edification of the Applicant. 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 after a review of Applicant’s case. 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. 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 to consider mitigating the misconduct that resulted in the characterization of discharge. Relief on this basis is not warranted
.
Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

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 P1900.16F), effective
01 September 2001 until Present.

 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 abse nce 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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