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

 ex-PVT, USMC
Docket No. MD99-01237

Applicant’s Request

The application for discharge review, received 990921, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant did not list any  representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000525.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Conduct tribal by courts-martial (request for discharge for the good of the service), authority: MARCORSEPMAN Par. 6419.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  At the time of my discharge, my wife was very ill.  She had tubular problems, from a pregnancy.  During my tour of duty, she had surgery on 3 different occasion.  She didn't have a mother to comfort her, so she felt like I was the only one that could comfort her.  I know that I had a job to do within the corps, but she called me every day, and so when I finally came home on leave, I didn't come back on time and I didn't have any more leave time left. With her begging me to stay with her I did that, and was court-martialed for being AWOL.  I loved the corps and wanted a career in the corp.  If you will sir please grant me an honorable discharge, so that I can get a good job.  I would really appreciate it.  If you check my records you can see that I got a good conduct medal, and a driving award.  Never were in trouble. I just panicked at the time of my wife's pregnancy.  I'm very sorry for being late on return to the corps.  Even though I was escorted back I was a good soldier.  I think I deserve an upgrade because of my achievements as a civilian also.            

Documentation

In addition to the service record, the following additional documentation, submitted by the applicant, was considered:

None

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Active:   USMC		None
	Inactive:  USMCR(J)		870909 - 871124	COG

Period of Service Under Review:

Date of Enlistment:  871125		Date of Discharge:  900320

Length of Service (years, months, days):

	Active:  01  10  08
	Inactive:  None

Age at Entry:  27			Years Contracted:  4 

Education Level:  12			AFQT:  35

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.9 (6)		Conduct:  3.3 (6)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Marksman Badge, SSDR 

Days of Unauthorized Absence:  168

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/Conduct triable by courts-martial (request for discharge for the good of the service), authority:  MARCORSEPMAN Par. 6419.

Chronological Listing of Significant Service Events:

880510:	NJP for violation of UCMJ, Article 86: UA from 1805, 880506 until 0200, 880509 (3days).
Awarded forfeiture of $200.00 per month for 2 months, restriction and 
extra duties for 15 days (suspended for 6 months).  Not appealed.

890608:	Applicant declared a deserter on 890118 having been an unauthorized absentee since 0731, 890118 from 9THMTBN, 3D FSSG, FMFPAC FPO SFRAN CA.

890615:	Applicant surrendered to military authorities on 890607 (1320) at 4th Assault Amphibian Bn, 4th MarDiv, USMCR, Jacksonville, Florida.  Issued orders and trans to report to CO, MCMCC, MCB, CamPen For trans to orig.  Arrive this org 0820, 890615.

890811:	Summary Court-Martial for violation of UCMJ, Article 86: Without authority, absent himself from his organization 890330 to 890607 (68days).  Findings – guilty.
Sentenced to CHL for 1 month, forfeiture of $349.00 per month for 1 month, reduction to E-1.
CA (890911) Approved and ordered executed.

900129:	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 honorable conditions.  The applicant admitted guilt to the following violations of the UCMJ: Article 86: UA from 891008 to 891220.

900221:	SJA review determined the case sufficient in law and fact.

900222:	GCMCA [CG, 1st Force Service Support Group] determined that applicant had no potential for further service, that separation in lieu of trial by court-martial was in the best interest of the service, and directed discharge under other than honorable conditions by reason of conduct triable by courts-martial.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 900320 under other than honorable conditions in lieu of trial by court-martial (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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).

In the applicant’s issue, the Board no documentation to support his claims that his wife and mother were seriously ill.  No where in the records does it appear that the applicant tried to get help from his command.  He did not request a humanitarian transfer, never went to a minister, or tried to contact his command while in a UA status to explain his problems.  The Board further found that the applicant did not receive the Good Conduct Medal as he alleges.  He states that he was never in trouble, except for this one incident.  The Board found that this not to be true.  The applicant was UA 3 times, for a total of 168 days and had one NJP, in addition to the Summary Court-Martial. The applicant requests his upgrade because of his achievements as a civilian, but has provided no documentation to support this.  Relief denied.

The following is provided for the applicant’s edification.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (E).  The applicant must be aware that 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, may be considered by the NDRB.  Documentation is required. The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is highly recommended.

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 P1900.16D), effective 27 Jun 89 until 17 Aug 95.

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 “afls14.jag.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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023