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

 ex-LCPL, USMC
Docket No. MD02-00599

Applicant’s Request

The application for discharge review, received 020402, 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 021217.  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, as submitted

1. To the Naval Review Board,

I am writing to try and get my enlistment discharge upgraded.  This enlistment took place in 1996; I received an other than honorable discharge in lieu of a court-martial in 1999.  The charges were desertion from Twenty Nine Palms California.  My decision to skip the court-martial was based on my lawyer's advice.  I never deserted from the Marines.  I was told my enlistment papers were void and invalid by the sergeant working in the company office.  I was never paid or given travel reimbursement, for those reasons.  The part of the enlistment package in question was my original orders.  The dates were wrong and made no sense.  I ask the Sergeant how long it would take him to fix it.  He responded by saying that the only people authorized to change my enlistment papers were me and my recruiter.  For these and other reasons I was led to believe that I was not in the Marines.  When a person does not get paid, issued uniforms or reimbursed for their trip to their duty station and they are told by the people in charge that they are on their own, at some point, they have to decide what they are going to do.  After being there for two weeks I decided not to go through with the enlistment process again. Sometime after I had left, I received a phone call from a Marine Staff Sergeant saying that I was on a desertion list and that to get off the list I should turn myself in.  So I drove down to Camp Lejeune to take care of the problem in person.  I was put in a work platoon for over three months while they tried to figure out what happened.  The prosecutor and the Lt. Colonel had agreed to let me go because they felt a mistake had been made.  When it was run up to the Colonel for him to sign, my lawyer told me that the Colonel said the only problem he had with letting me go was that he wondered why I did not go back to my recruiter.  If I could have talked to him I would have told him that I didn't really see a need to go back to my recruiter.  I wasn't going to go through with another enlistment. At this point, I was given the option to go to a court-martial or to take an other than honorable discharge in lieu of a court-martial.  My lawyer told me that the Colonel was "a real hard ass" and that he did not think that we could win.  He said if I lost I would get a bad conduct discharge and spend six months in the brig.  I had already spent three months their already.  So, I took his advice and took the other than honorable discharge in lieu of a Court-martial.
I would have written to you sooner but I just recently found out about the appeals process.  Some other things that may or may not influence your decision are; I have two honorable enlistments before this, and I am a Gulf War Veteran.  I hope that this is enough information for you to make a favorable decision.  I am very proud of my service in the Marines and to have something as stupid as a misunderstanding mess my whole service record up, I feel is an injustice.  This has bothered me for a long time and I just want to get it corrected and move on with my life.
I am enclosing all copies of my DD214's, the enlistment orders with the dates in question circled and anything else that I can find to support what happened.  Thank for your time.

Documentation

In addition to the service record (there was NO DISCHARGE PACKAGE AVAILABLE), the following additional documentation, submitted by the Applicant, was considered:

Permanent Change of Station Orders
Incomplete DD Form 214 (Handwritten Information)
Report of Separation and Record of Service
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USMCR(J)		880714 - 881025	COG
Active:   USMC		881026 - 921025	HON
	Inactive: USMCR		921026 - 941120	HON
	Active:   WVANG		941121 - 960425	HON

Period of Service Under Review:

Date of Enlistment:  960426		Date of Discharge:  990625

Length of Service (years, months, days):

	Active:   00  05  02
	Inactive:  None

Age at Entry:  25			Years Contracted:  4 

Education Level:  12			AFQT:  52

Highest Rank:  Cpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  NMA*			Conduct:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, GCM, SSDRw3*, KLM, CARw3*, SASM

Days of Unauthorized Absence:  999

*No Marks Available for review

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:

960605:	To UA 0631, 960605.

960627:	From UA 1400, 960627 (22 days/S).

960715:	To UA 0701, 960715, declared a deserter.

990319:	From UA 1230, 990319 (977 days/S).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 990625 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 Applicant did not provide sufficient documentation to overturn the presumption that his discharge was proper and equitable.  Relief denied.

Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity is evident 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.  Relief not warranted.

The Applicant 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.  Representation at a personal appearance hearing is recommended but not required.

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 “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