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USMC | DRB | 2009_Marine | MD0900191
Original file (MD0900191.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20081030
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request: Characterization change to:
                  Narrative Reason change to:

Summary of Service

Prior Service:
Inactive: USMCR (DEP)     19730625 - 19730807     Active:  

Period of Service Under Review:
Date of Enlistment: 19730808     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20060914      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 25 D a y ( s )
Education Level:        AFQT: NFIR
MOS: 8911
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      NONE

Periods of UA : 0731, 19740416 - 0920, 19740417 (1 day, 1 hour, 49 minutes)
 0725, 19740418 - 1200, 19740521 (33 days, 4 hours, 35 minutes)
 0001, 19750614 - 1400, 20060913 (11,415 days, 13 hours, 59 minutes)
         
CONF: SCM: SPCM: CC: Retention Warning Counseling :

NJP:
- 19740123 :       Article 86 (UA (0701, 19740121-0700, 19740123 (1 day, 23 hours, 59 minutes) )
         Awarded: Suspended: Suspension vacated 19740402

- 19740402 :      Article 86 ( 0731, 19740325-0730, 19740402 (7 days, 23 hours, 59 minutes) )
          Awarded : CCU Susp ended: CCU

Types of Documents Submitted/reviewed

 Related to Military Service:
DD 214:      Service / Medical Record: Other Records:

Related to Post-Service Period:  
         Employment:                        Finances:                          Education /Training :     
         Health/Medical Records:           Substance Abuse:                           Criminal Records:       
         Family/Personal Status:                   Community Service:                References:              
Additional Statements :
From Applicant:         From Representat ion :   From Congress member :

Other Documentation :



Pertinent Regulation/Law

 A. Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications .

 C . 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 V, Para 502, Propriety and Para 503, Equity .

D . 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 (UA) .



DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

 1. Applicant did not know he was UA for 30 years, believed he was discharged.
2. Good conduct while UA.

Decision

 Date: 20 0 9 0218            Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall IN LIEU OF TRIAL BY COURT-MARTIAL .
Discussion

 : ( ) . The Applicant contends he is entitled to a discharge upgrade because he believed he had been discharged in 1975. In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service was marred by two NJP ’ s for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (UA). The periods of UA by these 2 NJP’s were a 1 day period in January 1974 and a 7 day period from 25 March - 2 April 1974. Additionally , it was noted the Applicant ha d a period of UA for 33 days from 18 April - 21 May 1974 , he utilized “straggler’s orders” to return to his base from this period of UA .
The record of evidence also shows the Applicant was apprehended by the Philadelphia Police Department in August 1974 for unknown reasons. It appears the Applicant was detained by the Philadelphia Police pending investigation and trial until t he Applicant was released to the Marine Barracks, Philadelphia on 11 Jun e 1975 when the record shows the civilian charges of robbery, threats, and conspiracy against him were dismissed without trial. The Applicant was again issued “ straggler’s orders ” directing him to report to Camp Lejeune , NC, no later than 13 June 1975. The Applicant failed to report and was declared a deserter on 30 April 1976.

The Applicant was again apprehended by the Philadelphia Police Department and returned to Marine Corps custody on 14 September 2006 after being in a UA status for more than 31 years. The Applicant’s absence constitutes a violation o f Article 86 (UA). Violation of Article 86 in excess of 30 days is considered a serious offense which could have resulted in a punitive discharge and confinement if adjudicated and awarded as part of a sentence by a special or general court - martial. The command opted to accept the Applicant’s request for an “Under Other Than Honorable Conditions” in lieu of trial by court-martial. The NDRB rejects the Applicant’s contention he believed he had been discharged . The record clearly shows he was given “straggler’s orders ” to return to Camp Lejuen e , NC . This implies the Applicant was aware of his obligation to report, but failed to do so. The NDRB determined the Applicant was aw are of the obligation to report and understood the nature of “straggler’s orders”, especially since he had already returned to Camp Lejuene, NC from a previous period of UA by the same process of “ straggler’s o rders ” during May 1974. The NDRB determined the awarded discharge characterization was appropriate; an upgrade would be inappropriate.

: ( ) . The Applicant contends he is entitled to a discharge upgrade because of his good conduct while UA from the Marine Corps. Specifically, the Applicant contends he was a good father and husband, and has been a good citizen who has traveled the world with the Philadelphia Orchestra . The NDRB rejects the Applicant’s contention. The NDRB is authorized to consider post-service conduct in recharacterizing discharge s, but no such provisions allow the NDRB to consider conduct while a member is in a UA status . The NDRB determined an upgrade would be inappropriate.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record, Discharge Process and evidence submitted by the Applicant, the Board found

ADDENDUM: Information for the Applicant

 Complaint Procedures : 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 to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC 20301-4000 . 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 . ”

Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provi ded the 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. If a former member has been discharged for more than 15 years , has already been grante d a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

 Service Benefits: The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.
Employmen t / Educational Opportunities : The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.

Reenlistment/RE-code: Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. 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.
Medical Conditions and Misconduct : DoD disability regulations do not preclude a disciplinary separation. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation or is referred to a court-martial fo r misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other medical related reasons. ” Only the Board for Correction of Naval Records can grant this type of narrative reason change.
Automatic Upgrades - 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 may 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.

Issues Concerning Bad-Conduct Discharges (BCD ) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a special court-martial, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed. The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership: 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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