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

 ex-LCpl, USMC
Docket No. MD01-00234

Applicant’s Request

The application for discharge review, received 001218, 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 011108.  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.  I am asking that my discharge be upgraded due to the fact that I went UA to fight a custody battle for my son.  Also the fact that I was transferred from Camp Lejeune to NAS Cecil Field, FL in July "98" due to the fact that my grandmother was very ill.  I was told when I was leaving Camp Lejeune that I would be in NAS Cecil Field for the rest of my enlistment, which was until June 20, 2001.  In Dec "98" I was informed that Cecil Field was closing down and that my unit was (MATSG) being sent to NAS Oceana VA.  When I heard about this I tried to speak to my Admin and I as informed that I was also included in this transfer.  During my time at Cecil Field I was able to be with my grandmother and mother who are both ill.  Also while in Cecil Field I was able to start my custody battle for my son.  I knew and tried to explain to my unit that if I was transferred I would never get to see my son again.  My ex was planning on moving to Arizona and not telling me.  I've been out for a 1 yr ½ and just recently resolved the custody battle.  Also I am asking that my discharge be upgraded due to the fact I want back in the service as a reservist.  Please look at what I did to get in and understand that my son would've grew up with out knowing his father if I didn't go AWOL.  I tried every way possible and this was the only way I would stop my ex from leaving.  (Get home and file a petition for custody so she wouldn't leave the state.)  As I stated previously, I want to get back in the Corps as a reservist and make up for what I did.  I was 17 y/o when I joined with a 2 y/o little boy.  I planned on making the Marine Corp my future.  While in the delayed entry Program I helped to recruit 2-10 people and was promoted to PFC meritoriously.  In MCT I was promoted to Lance Corporal meritoriously.  I was a 17 y/o Lance Corporal with a bright future until my ex started threatening to leave Florida and refused to let me see my son.  That is why I did what I did to get out.  I grew up without a father and I didn't want my son t grow up without one so I did what I could and it worked.  I now have regular visitation and will be going back to court shortly for full custody.  Please consider my review of my discharge and grant it.

Documentation

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

Circuit Court, Fifth Judicial Circuit, Lake County, Florida Final Judgment dtd 20 Jul 2000
Visitation Schedule
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		960723 - 970120	COG

Period of Service Under Review:

Date of Enlistment:  970121		Date of Discharge:  990430

Length of Service (years, months, days):

	Active:   02  03  10 (Doesn't exclude lost or confinement time.)
	Inactive:  None

Age at Entry: 17(Parental Consent)	Years Contracted:  4 

Education Level:  12			AFQT:  53

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (4)		Conduct:  4.3 (4)

Military Decorations:  None

Unit/Campaign/Service Awards:  MUC

Days of Unauthorized Absence:  44

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:

980601:	Counseled for deficiencies in performance and conduct. [On numerous occasions you have been involved with civilian authorities in this state and others concerning traffic violations and criminal investigations; not yet resolved.  Additionally, counseled for substandard appearance in uniform, frequent visits to sick call, a disregard for the Chain of Command, and poor performance at work].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

981201:	Eligible but not recommended for promotion to CPL for Dec 98 due to lack of maturity and responsibility necessary to assume the roles of a noncommissioned officer.

990101:	Eligible but not recommended for promotion to CPL for Jan 99 due to lack of maturity and responsibility necessary to assume the roles of a noncommissioned officer.

990204:	Counseled for deficiencies in performance and conduct [lack for rules and regulations which lead to your recent Court Order from the Circuit Court of the Fifth Judicial Circuit, in and for Lake Country, FL, Injunction For Protection Again Repeat Violence (after notice) on 990202].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

990215:	Unauthorized since 1000, 990215.

990318:	Applicant declared a deserter on 1000, 990215.

990328:	Applicant apprehended by civil authorities on 990328 (2315) at Gainesville, Fl.  Returned to military control 990329.  Delivered to MATSG, NAS Cecil Field, FL.

990329:	To confinement.

990330:	The mark of desertion under 990318 for the absence commencing 990215 removed as erroneous.  Referred to trail for the offense of UA.

990429:	Released from confinement.

[Applicant's request for discharge in lieu of court martial and the separation authority not contained in the service record.]

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 990430 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).

Issue 1. The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions.  There is no evidence in the official record, nor did the applicant provide any certifiable documentation that there was an impropriety during his enlistment concerning request for a compassionate reassignment. The offense with which the applicant was charged could have led to a punitive discharge had the convening authority not accepted the applicant’s request for separation in lieu of trial by court-martial.  The discharge was proper and equitable.  Relief denied.

Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the applicant’s enlistment.  Additionally, 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 civilian life, subsequent to leaving the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  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.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct.  The applicant did not provide sufficient documentation to warrant an upgrade to his discharge.  He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.  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.  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 “afls10.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