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

 ex-PFC, USMC
Docket No. MD00-00208   

Applicant’s Request

The application for discharge review, received 991129, requested that the characterization of service on the discharge be changed to Honorable.  The applicant requested a personal appearance hearing discharge review before a traveling panel closest to Knoxville, TN.  The applicant listed VETERANS OF FOREIGN WARS as his representative on the DD Form 293.

Decision

A personal appearance hearing was conducted in Washington, D.C. on 000503.  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, at the time of discharge.  However, based on the applicant’s post service conduct, the Board’s vote was 4 to 1 that the character of discharge shall change but the reason shall remain the same.  The discharge shall change to: UNDER HONORABLE CONDITIONS (GENERAL)/Conduct triable 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.  IAW SECNAV Instruction 5420.174C of 22 August 1984 (MDR 1984), enclosure (1), chapter 9 paragraph 9.3, Equity of Discharge.

2.  We ask the Board to consider the applicant’s case IAW SECNAV Instruction 5420.174.C of 22 August 1984 (MDR 1984), enclosure (1), chapter 9, paragraph 9.2, Propriety of Discharge.

Documentation

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

Employment reference letter, copy of employment reference letter 
Character reference letters (4), and 1 copy 
Letter from applicant's mother, copy of mother's letter  
Letters from applicant (2)
Copies of DD Form 214 (4)
Copy of Commanding General Discharge letter (2)
Copy of Charge Sheet (3pgs)
Copies of Release of Arrest Record (2)
Copies of Criminal History Record (3)
Copies of History/Background Disclaimer (2)
Letter from applicant to Congressman J_____.J. D______

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		880220 - 880918	COG

Period of Service Under Review:

Date of Enlistment:  880919		Date of Discharge:  891013

Length of Service (years, months, days):

	Active:  01  00  25
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  40

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.40 (2)		Conduct:  4.4(2)

Military Decorations:  None

Unit/Campaign/Service Awards:  None 

Days of Unauthorized Absence:  147 

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:

890331:	To UA.

890501:	Applicant declared a deserter on 890430 having been an unauthorized absentee since 1201, 890331 from HQBTRY, 10THMAR, 2DMARDIV FMF CAMLEJ NC.

890824:	Applicant apprehended by civil authorities on 890824 (1609) at Knoxville, TN.  Delivered under guard to HQBTRY, 10THMAR, 2DMARDIV FMF CAMLEJ NC.

890826:	To confinement awaiting trial by special court-martial.

890922:	Applicant, having consulted with counsel certified under UCMJ, Article 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: UA 890331 to 890824 (147days/A).

890922:	SJA review determined the case sufficient in law and fact.

890925:	From confinement (30 days time lost)

890929:	GCMCA [Commanding General] 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.

950110:	NDRB documentary record review Docket Number MD94-00466 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 891013 under Other Than Honorable conditions in lieu of trial by court-martial (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board determined that, the discharge was proper and equitable (D and E), at the time of discharge.  The Board found, however, that the applicant is deserving of relief based on post service conduct.  The applicant has maintained a creditable life style and has been a productive member of society.  Although the Board decided to grant relief, the applicant’s post service conduct does not warrant an upgrade to Honorable.  His misconduct while in the military was too significant to be totally admonished.  The applicant’s discharge shall be upgraded to under Honorable conditions (General) but the reason shall remain Conduct triable by courts-martial. 

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.  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.

C.  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.  

D.  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.

E.  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 obtain a copy of DoD Directive 1332.28 by writing to:

		DA Military Review Boards Agency
		Management Information and Support Directorate
		Armed Forces Reading Room
		Washington, D.C.  20310-1809

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
		Washington Navy Yard
		720 Kennon St SE Rm 309
		Washington, D.C.  20374-5023