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

ex-PFC, USMC
Docket No. MD01-00122

Applicant’s Request

The application for discharge review, received 001102, 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 010406.  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.  To members of the Board,
I (applicant) (social security number deleted) wish to provide issues concerning my discharge that I believe was inequitable because it was based on one isolated incident.  Issue one i what happened in 29 Palms California in 1987 was soley about two Marines that had different views about respect.
What led up to this incident was, after we had packed up to go to the desert exercise, This Marine sergeant and I didn't see eye to eye.  He would try to intimidate me in the shop everyday, by forcing respect from me, so the Marine sergeant requested that I be on this operation with him.  He was telling my fellow Marines what he was going to do to me in the desert away from the shop.  I didn't want to go on this operation with him knowing this.  So I went to the Commanding Officer for help.
He told me to go on this operation and to stay out of the sergeants way, so I did as I was told.  Before going to 29 Palms, I attended Church with my unit, while attending I had on prescription sunglasses from the Naval hospital.
While service was going on the sergeant came over to me with a hostile attitude in front of the whole church about my prescription glasses.  He knew they were prescription, because he had looked through them in the shop.  And I wore them everyday, My glasses were the black framed ones you receive in boot camp.  I guess I didn't take them off fast enough, so he slapped them off my face.  To me that behavior was disrespectful in GOD's house and myself.
After that incident I went back to the Commanding Officer reported the matter, I pleaded to the Commanding Officer that I didn't feel comfortable going on this operation with this Marine sergeant.  The Commanding Officer told me that it was too late to replace me, so I had to go, After arriving at 29 Palms everything seemed to be going well.  I gave him respect and he respected me as well.  So I was under the impression that 3 months in the desert with the sergeant was going to be alright.
The sergeant was nice to me, he even let myself and a few of my Marine buddies borrow his car for my birthday to go into town to celebrate my 21st birthday.  So we all went out had a nice time returned back to base.
My buddies and I returned the keys to my sergeant.  I had celebrated & grieved a little too much with my buddies. I had lost a son in an automobile accident 4 days before my birthday back home.  The sergeant and I had talked about it.  So I respected his input and encouragement to be strong and to stay focused.
After giving the sergeant his keys I thanked him.  He told me thats what Marines do for one another help each other like brothers.  He knew I had tried to bury my grief with the alcohol.  He told me to go lie down & sleep it off, and if I was still sick in the morning go to sick bay and that he would cover for me.
Believing that I went to the A-frame & got into my sleeping bag. When morning came I was so sick that I had chills and just felt awful.  So I told my fellow Marines to tell the sergeant that I was very sick and that I was going to sick bay.  After the sergeant learned about my sickness, he stormed through the A-frame while I was still in my sleeping bag.  He came over cursing and yelling at me.
I didn't understand his behavior, the same man that talked to me like I was his son, the same man that let myself & my friends borrow his pov to go into town.  He was furious about something, so I asked the sergeant what was wrong and to let him know that I was very sick.
He was listeneing to anything that I was trying to say.  He continued cursing & finally he kicked my cot over with me in it.  My face hit the deck, so I felt I had a right to defend myself at this point.
He was kicking me while I was trying to get out of the sleeping bag.  I finally got out and defended myself.  I'm sorry about this incident happening, but I truly feel that I had been harrassed and disrepected enough.  A person can only take so much.  I had lost a son and then this incident happens, I had alot of stress on me. I was trying to handle all of this the best way I could.  I can't bring my son back or charge what happened in the desert.  But I can say that I'm sorry that it happened, and that I would like for the Board to change my discharge to Honorable.  We as people make mistakes, GOD knew this when he created us.  All I'm asking for is a another chance to be an honorable person, I have matured & humbled myself tremendously GOD who strenghtens me has charged my spiritually, mentaly and emotionally.
I myself know that I made a mistake in the desert.  Being that man that I am today would have handled the situation much better.
In my Sunday school classes I mentor to the young people.  I always talk about my Marine life & the mistake I made. I tell the young people to learn from your mistakes.  I apply that for myself also, because I have learned from this mistake.
My strong belief in GOD has taught me to humble myself to be a better person.  In closing I would like to say the Marine Corps was a very good experience for me.  I have no regrets for being in the Corps or being a Marine.  I will be a Marine until I leave this world.  Thank you,

Documentation

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

Copy of DD Form 214
Character reference dated October 27, 2000
Character reference dated October 18, 2000
Character reference dated October 25, 2000

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		840417 - 850117	COG

Period of Service Under Review:

Date of Enlistment:  850118		Date of Discharge:  910815

Length of Service (years, months, days):

	Active:    06  06  28 does not reflect lost time
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  44

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.1 (5)		Conduct:  2.3 (5)

Military Decorations:  None

Unit/Campaign/Service Awards:  None 

Days of Unauthorized Absence:  1576 

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:

851204:	NJP for violation of UCMJ, Article 86:
Specification: Unauthorized absence from 0630, 7Oct85 to 1503, 20Nov85 (44 days/apprehended).
Awarded forfeiture of $200.00 per month for 1 month, restriction and extra duties for 30 days, reduction to Pvt.  Not appealed.

860619:	Counseled for deficiencies in performance and conduct.  [Frequent involvement with military authorities.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

861009:	NJP for violation of UCMJ, Article 108:
Specification: Altered military identification card on 860914, to wit: have his birthdate altered to read 650206.
Violation of UCMJ, Article 92:
Specification: Having an altered temporary pass on 860914.
Awarded forfeiture of $100.00 per month for 1 month, restriction for 30 days.  Forfeiture and restriction for 7 days suspended for 3 months.  Not appealed.

861014:	Counseled for deficiencies in performance and conduct.  [Frequent involvement with military authority, violating Marine Corps regulations.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

910712:	Applicant to confinement.

910725:	Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 86: Unauthorized absence from 0730, 1May87 to 1930, 11Jul91 (1532 days/apprehended).

910801:	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 1May87 to 11Jul91.

910812:	SJA review determined the case sufficient in law and fact.

910812:	GCMCA [Commanding General, 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 910815 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).

In the applicant’s issue 1, the Board examined the applicant’s claim that his discharge “…was inequitable because it was based on one isolated incident.”  The applicant's case was considered under the pertinent standards of equity to determine if any factors in this particular case merited relief but the Board disagrees with the applicant that his discharge was inequitable.  The NDRB found the applicant’s service record devoid of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded.  In fact, the Board found the applicant had been afforded thorough and detailed counseling on his deficiencies, beyond that normally provided, and was offered many avenues to correct his pattern of unauthorized absences and failure to obey lawful orders.  Relief is therefore, denied.

When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as honorable.  Characterization of service as Under Other Than Honorable Conditions is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The applicant’s service was marred by the award of nonjudicial punishment (NJP) on 2 occasions for violations of the Uniform Code of Military Justice (UCMJ), by multiple adverse counseling entries, and by a period of unauthorized absence lasting from 1 May 87 until 11 July 91 (1532 days) which was terminated only by the applicant’s apprehension and return to military control.  The applicant, having consulted with counsel understood he could receive a punitive discharge at a Special Court-Martial to which he was referred and requested discharge Under Other Than Honorable Conditions for the good of the service to escape trial by court-martial.  An upgrade to honorable would be inappropriate.  Relief is therefore denied.

The following is provided for the applicant’s edification.  The NDRB is authorized to consider 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.  However, there is no law or regulation that 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 be found to have existed during the period of enlistment in question.  No such error or injustice is evident in the applicant’s service record.  
Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  At this time the applicant has not provided sufficient documentation of good character and conduct.  Therefore no relief will be granted.  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 but not mandatory.

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 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