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

 ex-LCpl, USMC
Docket No. MD02-00063

Applicant’s Request

The application for discharge review, received 011004, 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 020529.  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/INVOL DIS (BOARD WAIVED (MISCONDUCT) AWOL, authority: MARCORSEPMAN Par. 6210.6.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  My discharge was inequitable because it was based on one isolated incident in 28 months of service with no other adverse action.

Documentation

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

Applicant's BCNR application dtd 3-16-01
Copy of DD Form 214 (2 copies)

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		920501 -920517	COG

Period of Service Under Review:

Date of Enlistment:  920518		Date of Discharge:  950126

Length of Service (years, months, days):

	Active:    02  08  09 (Doesn't exclude lost time)
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  38

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.6 (6)			Conduct:  4.4 (5)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Expert Badge (2), SSDR, NDSM, MM 

Days of Unauthorized Absence:  157 

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

UNDER CONDITIONS OTHER THAN HONORABLE /INVOL DIS (BOARD WAIVED) (MISCONDUCT) AWOL, authority:  MARCORSEPMAN Par. 6210.6.

Chronological Listing of Significant Service Events:

940624:	Counseled for deficiencies in performance and conduct [lack of judgement which resulted in being absent for 1 day and a half].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

940707:	Unauthorized absence from command since 0700.

940810:	Declared deserter this date.
940811:	Apprehended/arrested by civilian authorities in Surfside, Texas.

940821:	Charged with murder and confined to the Brazoria County Jail.

941018:	Applicant notified of intended recommendation for discharge under condition other than honorable by reason of misconduct due to the commission of a serious offense as evidenced by one violation of Article 85, UCMJ (desertion from 0700 940707) and a civilian charge for manslaughter reported on 940822.

941101:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

941122:	Commanding officer recommended discharge under condition other than honorable by reason of misconduct due to the commission of a serious offense as evidenced by his being absent without leave since 940707, declared a deserter on 940810 and not hard from again until his arrest by civilian authorities in Surfside, Texas on 940821.  Commanding officer’s comments (verbatim):  "Lance Corporal (Applicant) was suspected of stabbing a man to death on the beach in Surfside.  According to the arresting officer whose statement is contained in enclosure (8), Lance Corporal (Applicant) had "a large amount of blood on his clothes" at the time of his arrest.  He also had blood on his shoulder and chest.  He was charged with murder and confined to the Brazoria County Jail on 940821.  

941209:	SJA review determined the case sufficient in law and fact.

941213:	GCMCA [CG, 1ST MARDIV (REIN)] directed the applicant's discharge under conditions other than honorable by reason of misconduct due to the commission of a serious offense.

941220:	Transferred by Service Record to the Commanding Officer, Inspector-Instructor Staff, MCRC, Ft Point, Galveston, TX.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 950126 under conditions other than honorable for misconduct due to the commission of a serious offense (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 found that the applicant’s performance prior to his desertion doesn’t mitigate his misconduct.  There is no impropriety or inequity in the fact that the applicant had one instance of committing a serious offense during his 28 months on active duty and was involuntarily separated with an other than honorable discharge. 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. 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.  Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 890627 until 950817, Paragraph 6210, Misconduct.

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