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USMC | DRB | 2006_Marine | MD0600655
Original file (MD0600655.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-LCpl, USMC
Docket No. MD06-00655

Applicant’s Request
The application for discharge review was received on 20060410 . 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 20070201 . 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 - ISSUES AND DOCUMENTATION


Decisional Issues

Equity – Isolated incident


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

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19910918 - 199208 17       COG
          Active: USMC     19920818 - 19951113      HON
                           19951114 - 20021121       HON
Period of Service Under Review :
Date of Enlistment: 20021122              Date of Discharge: 2004061 5

Length of Service (years, months, days):

 Active: 0 1 0 6 2 4 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 371 day s
         Confinement:              None

Age at Entry: 2 8

Years Contracted: 4 ( 3 -month extension)

Education Level: 13                         AFQT: 84

Highest Rank: SSgt                                   MOS: 2862

Final Enlisted Performance Evaluation Averages (number of marks): Fitness reports were available to the Board for review.

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Marine Corps Good Conduct Medal with 3 * , National Defense Service Medal, Navy and Marine Corps Overseas Service Ribbon, Rifle Qualification Badge ( Sharpshooter ), Pistol Qualification Badge (Marksman)


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 :

021122 :  Reenlisted this date for a term of 4 years.
040528 :  Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 86: Unauthorized absence (UA) from 030423 to 040429 .
0 40603 :  Applicant, having consulted with counsel certified under UCMJ Art 27b, requested to be administratively separated in lieu of trial by court- martial. He understands that the least favorable characterization of discharge that may be awarded under these circumstances is an other than honorable discharge. The Applicant requests a characterization of general (under honorable conditions). 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. Having discussed this matter with counsel, he believe s this request is in his best legal and personal interest. He further understand s that he may be deprived of virtually all rights as a veteran under both Federal and State legislation and that he may expect to encounter substantial prejudice in civilian life in situation wherein the type of service rendered in any branch of the Armed Forces or the character of the separation received therefrom may have a bearing. The Applicant admitted guilt to the following violations of the UCMJ, Article 86 : On or about 030423, without authority, absent himself from his unit, to wit: Headquarter Battalion, located at Marine Corps Logistics Base, Barstow, California, and did remain so absent until on or about 040429 .
040604:  Commanding Officer, Headquarters and Services Battalion, Eastern Recruiting Region, Parris Island, recommended approval of the Applicant’s request for separation in lieu of trial, with a characterization of under other than honorable service.
040611 :  SJA review determined the case sufficient in law and fact.
040611 :  GCMCA, Commander , Marine Corps Recruit Depot/Eastern Recruiting Region, Parris Island, South Carolina, approved the Applicant’s request for separation in lieu of trial by court martial. The GCMCA directed the Applicant's discharge under other than honorable conditions by reason of separation in lieu of trial .

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040615 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).

Equity – Isolated incident: The Applicant contends that his misconduct was an isolated incident in an otherwise good career.

When the service of a member of the U.S. Marine Corps has been honest and faithful, it is appropriate to characterize that service as honorable. 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 record is marred by a period of unauthorized absence of 371 days. Unauthorized absence for a period greater than 30 days is a serious offense for which a punitive discharge is authorized if adjudged by a special or general court martial.
On 20040603, the Applicant 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 was guilty of the offenses. He further certified a complete understanding of the negative consequences of his actions and that characterization of service could 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.

For Applicant’s edification, the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces and the 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. The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this 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, unauthorize d 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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction . You should read Enclosure (5) of the Instruction 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 Instruction 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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