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

 
ex-Pvt, USMC
Docket No. MD00-00413 

Applicant’s Request

The application for discharge review, received 000211, 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 (blank).  The applicant did not list any representative on the DD Form 293. Subsequent to the application for review the applicant obtained American Legion as his representative.  The applicant failed to appear for the scheduled personal appearance discharge review.  Therefore, a documentary review was conducted.  The applicant is not eligible for further review by the Naval Discharge Review Board.  A request for further review will not be granted unless the applicant can demonstrate that the failure to appear was due to circumstances beyond the applicant’s control. 

Decision

A documentary discharge review was conducted in Washington, D.C. on 010329.  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 CONDITIONS OTHER THAN HONORABLE/Separation in lieu of trial by court-martial, authority: MARCORSEPMAN Par. 6419.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1. (Equity Issue)  As the documentary evidence of record supports, this former member opines that his post-service conduct has been sufficiently creditable  to warrant the Board’s clemency relief as authorized under provisions of SECNAVINST 5420.174C., enclosure (1), paragraph 9.3.  

Documentation

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

Statement from Applicant
Copy of DD Form 214
Copy of Volunteer Pilot Certificate and Community Service Letter
Copy of Private Pilot License and Medical Certificate
Copy of Certificate of Appointment to Advisory Council
Copy of Member, NASD Regulation Board of Arbitrators Certificate
Copy of Chairborne Ranger Certificate
Copy of Bachelor of Arts Degree
Copy of Confinee Laundry Inventory Slip
Copy of Letter to Congressman Y___
Transcripts (2)

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		None

Period of Service Under Review:

Date of Enlistment:  790228		Date of Discharge:  841121

Length of Service (years, months, days):

	Active:  05  08  24
	Inactive:  None

Age at Entry:  17			Years Contracted:  4 

Education Level:  12			AFQT:  48

Highest Rank:  Pvt

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  NMA		Conduct:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  None 

Days of Unauthorized Absence:  1710 

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

UNDER CONDITIONS OTHER THAN HONORABLE /Separation in lieu of trial by court-martial, authority:  MARCORSEPMAN Par. 6419.

Chronological Listing of Significant Service Events:

840221:	Applicant referred for final evaluation in Psychology Clinic, patient related that he is pending a Court-Martial for "destruction of government property" and for a period of "28 days UA".  The patient acknowledges partial responsibility for the destruction of his room at the barracks and indicated that he did, indeed, go UA for 28 days.  The patient related further that he has had previous Officer Hours on another count o destruction of government property and for something else he "can't recall".  The patient continues to reiterate the fact that he can't take the Marine Corps" and that it is too much".  He states that if he doesn't receive a separation from the Corps that he will go UA again and that "they will have to come and get me".  He stated that he returned from his last period of unauthorized absence because "my father told me to" {Extracted from health record}.

841030:	Detailed Defense Counsel, Joint Law Center, Marine Corps Air Station Cherry Point, North Carolina request to Commanding Officer, Marine Wing Headquarters Squadron -2, 2d Marine Air requesting that Pvt B____ be immediately tried or released from confinement.

841031:	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 800220 to 841003.

841102:	Detailed Defense Counsel, Joint Law Center, Marine Corps Air Station, Cherry Point, North Carolina second demand for immediate trial request to Commanding Officer, Marine Wing Headquarters Squadron - 2, 2d, Marine Aircraft Wing, FMF, Atlantic, MCAS, Cherry Point, Via Chief Trial Counsel.  Over four weeks have elapsed since Pvt B____ apprehension on 841003, and the government has not located this original charge sheet.  Without the original charge sheet Pvt B____ cannot be prosecuted because the statue of limitations has run on his uncharged offense of desertion.

841102:	Chief Trial Counsel, Joint Law Center, Marine Corps Air Station, Cherry Point, North Carolina to Commanding Officer, Marine Wing Headquarters 2.  Despite diligent efforts by both your legal personnel and this office, we have been unable to locate Pvt B___ original service record book or any charge sheet concerning his desertion.  A charge sheet alleging a violation of the Uniform Code of Military Justice, Article 85, for desertion, must have been drafted and receipted for in order to stop the running of the statue of limitation.  If charges are not receipted for within three years of the date of Pvt B____ initiated his deserter status, Pvt B____ can raise this defense at trial and the charges will be dismissed.  There is sufficient information contained within the DD-616, report of absentee to allow preferral of a desertion charge.  However, because this charge sheet is drafted after the statue of limitation period has run, Pvt B____ has a successful defense.  Therefore, it is recommended that he request for a Discharge in Lieu of trial by General Court-Martial be approved.

841116:	SJA review determined the case sufficient in law and fact.

841116:	GCMCA [Commanding General, Second Marine Aircraft Wing] 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 conditions other than honorable by reason of conduct triable by courts-martial.

PART III – RATIONALE FOR DECISION AND PERTINENT 
REGULATION/LAW

Discussion

The applicant was discharged on 841121 under conditions other than honorable 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 representative submitted the following as issue 1: (EQUITY ISSUE) This former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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, is considered.  The applicant provided some substantial documentation of his post-service.  However, the applicant's efforts need to be more encompassing than those provided.  The applicant should have produced more evidence of a verifiable employment record, more documentation of community service and certification of non-involvement with civil authorities in order for consideration for clemency based on post-service conduct.  The applicant has not provided sufficient documentation of good character and conduct to mitigate nearly five years of unauthorized absence.  Therefore no relief will be granted.  

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 P1900.16C), Change 2, effective 15 May 84 until 26 Jun 89.

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	

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