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

 ex-PFC, USMC 
Docket No. MD00-00808

Applicant’s Request

The application for discharge review, received 000608, 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010116.  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/IN LIEU OF TRIAL BY COURT-MARTIAL, authority: MARCORSEPMAN Par. 6419.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  In regards to my Other Than Honorable Discharge, my mother is disabled and I am her only relative close to her.  I come home to support her in every way.  When I was in Quantico, VA, my mother's doctors and psychologists have submitted many documentation supporting the case.  I would be grateful if you, the Board, could obtain these documents and everything needed to evaluate the dismissal of discharge.  All of these documents should be in my military file.

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		931230 - 940404	COG

Period of Service Under Review:

Date of Enlistment:  940405		Date of Discharge:  960507

Length of Service (years, months, days):

	Active:  02  01  03 (Doesn't exclude the lost time.)
	Inactive:  None

Age at Entry:  21			Years Contracted:  4 

Education Level:  12			AFQT:  48

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3		Conduct:  3.4 (Extracted from SJA ltr of 25Apr96.)

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  191

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

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT-MARTIAL, authority:  MARCORSEPMAN Par. 6419.

Chronological Listing of Significant Service Events:

940822:	Counseled for deficiencies in performance and conduct [lack of endurance, lack of intestinal fortitude, and failure to pass a PFT].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

950920:	Applicant declared a deserter on 950920 having been on unauthorized absence since 0601, 21AUG95.

960228:	Surrendered to I&I Staff, Co A, lstBn, 25th Marines, Topsham, ME at 0730, 28FEB96 and delivered to SctyBn, MCB, Quantico, VA. (191 days)

96????:	Applicant's statement concerning mother's illness, includes mother's Neurological evaluation dated Dec 13, 88, Cervical Spine MRI, letter from Long Creek Center for Internal Medicine dated 3/21/96.

960305:	Letter of Reference from applicant's employer (applicant employed from Oct 3, 95 until Jan 25, 1996).

960308:	Letter of Reference from applicant's friend concerning applicant's home situation.

960319:	Letter from applicant's mother advising command of her need to have son home.

960325:	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: on or about 21 Aug 94, without authority, absent himself from his organization, to wit: 2d Battalion, 6th Marines, 2d Marine Division located at Camp Lejeune, NC and did remain so absent until on or about 28 Feb 96.

960418:	Competency Review Hearing reduced applicant in rank to Private First Class (E-2) due to professional incompetence.  The factual circumstance upon which this reduction is based includes lack of judgment, reliability, obedience and self-discipline, as evidence by misconduct, specifically desertion for the period of 950821 to 960228.

960425:	SJA review determined the case sufficient in law and fact.

960506:	GCMCA [CG, MCB, Quantico] 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 960507 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 response to the applicant’s issue, the Board found that he was discharged for being UA for 191 days. There is evidence in his official records that substantiates his statements that his mother was disabled, (dated after his return from UA).  However, there is no indication that the applicant ever submitted a request for a humanitarian discharge/transfer prior to his UA.  The applicant was properly discharged. Relief denied.

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (B, Part IV).  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 has provided no documentation of his post-service.  The applicant should produce evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs in order for consideration for clemency based on post-service conduct.  He is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Relief denied.

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 P1900.16E), effective 
18 Aug 95 until present.

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