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

 ex-LCpl, USMC
Docket No. MD01-00530

Applicant’s Request

The application for discharge review, received 010314, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant designated the Veterans of Foreign Wars as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 011218.  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 had a prior HONORABLE discharge from my first enlistment in which I was Discharged as a Sergeant (E - 5 ). My first enlistment was from 1990 - 1994.
I feel that clemency is warranted because it is an injustice for me to continue the adverse conditions and consequences of my second enlistment discharge.
My DD 214 was issued once and it states both characters of service for both of my enlistments.  I never received a single DD214 for my Honorable discharge from my first enlistment. I have to suffer the burden of my second enlistment, because it is included on the same DD214 as my first enlistment.

2.  My average conduct and efficiency ratings/behavior and proficiency marks were always outstanding and above my peers.

3.  My ability to serve was impaired because of severe martial and family problems.  Please review letter that was written to the General of the Second Marine Division by me.  A copy of the letter is contained in my Records.

4.  My record of AWOL / UA indicates only a minor isolated offense in 7 1/2 years of faithful service.  I had never received a single NJP/Article 15 before this single incident.

5.  I never received a conviction by any civilian or military Law Enforcement Authority while I was in service.

6.  I received many awards and decorations while I was in service, to include a Navy Achievement Medal, (2) Good Conduct Medals, and several others.

I also received many Certificate of Commendations and Certificate of Appreciations from my superiors.

7.  I was so close to finishing my tour that it was unfair to give me an other than honorable discharge.  I had only 1 1/2 years left on my second enlistment to complete.  If it were not for my family situation, I would have never accepted an OTH Discharge in lieu of a Court Martial.  My family needed me very badly at that time.  I request several times to my command to receive a transfer or a hardship discharge so I could take care of my family, but my command ignored my requests.

While I was UA, I kept in touch daily with senior members of my to appraise them of my situation.  I would have never gone UA if my command would have given me either leave, of a transfer so I could have been able to take care of my family.  This was the first and only time in 7 1/ 2 years of service I was ever in any disciplinary trouble.  My prior service record was impeccable.

8.  I was always rated and promoted ahead of my peers.  I completed a tour of special assignment duty.  I was a watchstander, Sergeant of the Guard, and Assistant Detachment Commander of the two United States Embassies I was assigned to, which were the United States Embassy in Moscow, Russia and Tel Aviv, Israel.

9.  I served in Operation Desert Storm, Operation Provide Comfort in Northern Iraq and Turkey.  I also served in Operation Joint Endeavor and in support of our Operations in Bosnia.

10. The punishment that I received at discharge was too harsh and severe.  It was much worse than most other people would have received for the same offense.

I was reduced to a Lance Corporal (E - 3) from a Sergeant (E-5), and was given an OTH discharge.  This was my first and only offense against the UCMJ in 7 1/2 years of service and it was a minor offense which was because I needed to be with my family then.  I regret the actions that I took and I do truly regret them every single day . I was confused and my command offered me nothing to help my situation.

Every request for a Compassionate Assignment or a hardship transfer or discharge was rejected.  I was then sent to a Sergeants Leadership course.

Submitted by VFW:

11.  IAW SECNAV Instruction 5420.174C of 22 August 1984 (MDR), enclosure (1), chapter 9, paragraph 9.3, Equity of Discharge.

Documentation

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

Applicant's Opening Statement dtd Dec 15, 2000

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		900716 - 951101	HON
	Inactive: USMCR(J)		890719 - 900715	COG

Period of Service Under Review:

Date of Enlistment:  951102		Date of Discharge:  980318

Length of Service (years, months, days):

	Active:   02  04  17 (Doesn't exclude lost time)
	Inactive:  None

Age at Entry:  23			Years Contracted:  4 

Education Level:  12			AFQT:  64

Highest Rank:  Sgt

Final Enlisted Performance Evaluation Averages:  All enlisted performance reports were available to the Board for review.

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SWASM (w/2 Stars), SSDR (w/2 Stars), JMUC (w/2 Stars), NAM, OSR, KLM, GCM (2), MAFSM, HSM, CoA, Rifle Expert Badge, Pistol Sharpshooter Badge

Days of Unauthorized Absence:  32

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:

951102:	Reenlisted at MSGBN (State Dept), Quantico, VA for term of 4 years.

971215:	Unauthorized absence since 0630, 971215.

980114:	Declared deserter this date as of 0630.

980114:	Applicant declared a deserter on 980114 having been an unauthorized absentee since 0630, 971215.

980116:	Applicant apprehended by civil authorities on 980116 (2224) by the Ogensbury New York State Police Dept.  

980203:	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 than honorable conditions.  The applicant admitted guilt to the following violations of the UCMJ, Article 86: unauthorized absence from 15DEC97 until being apprehended on 16JAN98; Article 107:  with intent to deceive make an official statement to Battalion Officer stating a leave extension approval; and Article 134(2 specs): Spec 1 - wrongfully solicit Cpl A_, to obstruct justice, by trying to deceive New York State troopers into believing he was not in an unauthorized absence status; Spec 2 - wrongfully solicit Cpl A_ to make a false official statement by requesting that the said Cpl A_ lie to New York state troopers about the Sgt A_'s leave status.

980209:	Trial counsel recommended applicant's request for separation in lieu of trial by court martial be approved with an Other Than Honorable Discharge.

980224:	SJA review determined the case sufficient in law and fact.

980304:	GCMCA [CG, 2d MARDIV, II MEF, Camp Lejeune] 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 980318 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 Board noted that the applicant’s current DD 214 contained an administrative error, and recommended that it be corrected or reissued as appropriate.  The applicant stated it is an injustice for him to continue to suffer from the adverse conditions and consequences of his second enlistment discharge.  However, on 980204, during his request for separation in lieu of trial by court-martial, he acknowledged that he may be deprived of virtually all rights as a veteran and encounter substantial prejudice in situations wherein the character of separation from the Armed Forces has a bearing. Relief denied.

Issues 2, 5, 6, 8, 9, 10, 11.  The Board found no inequity or impropriety in the fact that the applicant’s record of service did not mitigate the separation authority’s decision to discharge the applicant with an other than honorable characterization of service. The applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful disobedience of the orders and directives which regulate good order and discipline in naval service, and falls short of that required for an honorable characterization of service.  Relief denied.

Issues 3, 4 and 7.  The Board disagrees with the applicant’s assertion that his desertion was a minor offense.  The applicant’s personal problems did not mitigate the seriousness of the offense with which he faced a trial by court-martial.  There is no evidence that the applicant’s command unfairly denied him the opportunity for a discharge or transfer on humanitarian grounds or that the applicant should not be held accountable for his actions.  Relief denied. The applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  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