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USMC | DRB | 2006_Marine | MD0600776
Original file (MD0600776.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. MD06-00776

Applicant ’s Request
The application for discharge review was received on 20060517 . 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 20070308 . 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 – Applicant’s mental condition, otherwise honorable service and family situation mitigate his misconduct .

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 4)
Statement from Applicant , dated December 2 , 2005
Character Reference ltr from A_ G. F_, M.D., dated January 27, 2006
 Character Reference ltr from D_ M_ P_ (1stSgt USMC , Retired) , dated May 28, 2006

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    20011129 - 20020513       COG
         Active: None
Period of Service Under Review :
Date of Enlistment: 20020514              Date of Discharge: 20050805

Length of Service (years, months, days):

 Active: 03 02 22 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 539 day s
         Confinement:              None

Age at Entry: 20

Years Contracted: 4
Education Level: 12                                 AFQT: 53

Highest Rank: LCpl                                  MOS: 0331 (Machine Gunner)

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3 . 8 ( 4 )                                 Conduct: 3 .0 ( 5 )
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Rifle Expert(2); Combat Action Ribbon; Global War on Terrorism Expeditionary Medal; Iraq Campaign Medal; Sea Service Deployment Ribbon; National Defense Service Medal, Letter of Appreciation


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 :

021210:  Counseling: Advised of deficiencies in performance and conduct ( Illegal drug involvement, to wit: amphetamine useage . ), necessary corrective actions explained, sources of assistance provided.
030106:  Medical evaluation by Division Psychiatrist.
         Diagnosis: Personality disorder, not otherwise specified, with immature features.
         Applicant manifests a long-standing disorder of character and behavior, which is of such severity as to interfere with his ability to function in the military environment. Although not imminently suicidal of homicidal, the member poses a continuing risk to harm himself or others and negatively impact unit effectiveness and morale if retained in military service.
          Recommendation: Strongly recommend that a 6105 entry be waived and that the member be processed expeditiously for an administrative discharge in accordance with MARCORSEPMAN paragraph 6203.3 by reason of unsuitability.

030808 :  NJP for violation of UCMJ, Article 92: Fail to obey a lawful order by wrongfully wearing an earring on 0400, 030808.
         Award: Forfeiture of $ 316.00 per month for 1 month, restriction and extra duty for 14 days. Not appealed.
031205 :  Applicant to unauthorized absence at 1731.

031205:  Applicant declared a deserter.

 050527 :  Applicant from unauthorized absence at 1859 .
050603 :  Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 86: In that A_ L. G_, U.S. Marine Corps, Headquarters and Support Battalion, Marine Corps Base, Camp Lejeune, North Carolina, did, on or about 031205, without authority, absent himself from his unit, to wit: 1 st Battalion, 2d Marine Regiment, 2d Marine Division, located at Camp Lejeune, North Carolina and did remain so absent until on or about 050527.

050712 :  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 than honorable conditions. The Applicant admitted guilt to the following violations of the UCMJ, Article 86.

050718 :  SJA review determined the case sufficient in law and fact.

 050729 :  GCMCA, Commanding General, Marine Corps Base Camp Lejeune , 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 20050805 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 contends that his discharge is inequitable because his mental condition, otherwise honorable service and family situation mitigate his misconduct. 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 a counseling for illegal drug use, a violation of Article 112a of the UCMJ. The Applicant’s service was also marred by nonjudicial punishment proceedings for violation of Article 92 of the UCMJ. The evidence of record also shows the Applicant’s unauthorized absence was 539 days in duration, a violation of Article 86 of the UCMJ. The Applicant’s violations of Articles 86, 92 and 112a of the UCMJ are serious offenses, for which a punitive discharge is authorized if adjudged as part of the sentence upon conviction at special or general court-martial. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. 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. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. 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, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided sufficient post-service documentation to consider mitigating the misconduct that resulted in the characterization of discharge. 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 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, unauthorized absence for more than 30 days , Article 92, failure to obey order/regulation or Article 112a, wrongful use of a controlled substance.

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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