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

ex-LCpl, USMC
Docket No. MD00-00220

Applicant’s Request

The application for discharge review, received 991130, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  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 000824.  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 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.  The discharge is improper because of one incident in 3 years of service.  Before I went U.A. and missing movement I asked for leave, because my brother was on drugs and giving my mother a hard time, but my Plt. Sgt. wouldn't approve it.  I stated this fact on paper, after I turned myself in, before my discharge.  I was a model Marine before this happened.  I had high pro. and con. marks and a meritorious mast for being in my battalion's P.R.P. program.

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:   None
	Inactive: USMCR(J)		850820 - 860811	COG

Period of Service Under Review:

Date of Enlistment:  860812		Date of Discharge:  900726

Length of Service (years, months, days):

	Active:    03  11  15
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  60

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.5 (11)		Conduct:  4.4 (11)

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, MUC, MM

Days of Unauthorized Absence:  354

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:

890605:	Applicant to unauthorized absence, 0700, 5Jun89.

890709:	Applicant from unauthorized absence 1100, 9Jul89 (34 days).

890829:	Charges preferred to summary court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 85: Desertion from 0645, 21Jul89 until he was apprehended 12Jun90.

900625:	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: Unauthorized absence from 0645, 890721 to 1600, 900612 (326 days/surrendered).

900615:	Applicant's statement for request for a separation in lieu of trial by court-martial: "I have had a lot of personal problems at home that has kept me from keeping my mind on the Marine Corps.  My mother has recently re-married, and he and her husband fight a lot.  My brother has had two open heart surgeries and still has a bad heart mummer.  Last year my girlfriend and 1st cousin were killed in a car wreck.  I've tried to adjust to the corps but cant.  I feel that I could do more good at home then in the service.

900626:	SJA review determined the case sufficient in law and fact.

900705:	GCMCA [Commanding General, 1st Marine Division (Rein), FMF] 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 991130 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 found that the discharge was proper and equitable (D and E).

The applicant’s issue states:  “The discharge is improper because of one incident in 3 years of service.  Before I went U.A. and missing movement I asked for leave, because my brother was on drugs and giving my mother a hard time, but my Plt. Sgt. wouldn't approve it.  I stated this fact on paper, after I turned myself in, before my discharge.  I was a model Marine before this happened.  I had high pro. and con. marks and a meritorious mast for being in my battalion's P.R.P. program.”  The NDRB, in review of the applicant’s record, found no evidence to mitigate the applicant’s unauthorized absence of over 350 days total.  Further the NDRB found no impropriety or inequity in the applicant’s discharge.  Relief is not warranted.

The following is provided for the applicant’s edification.  The NDRB is authorized to consider post-service factors in the re characterization of a discharge.  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.  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.  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 [ e.g., 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 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