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

ex-LCpl, USMC
Docket No. MD02-00665

Applicant’s Request

The application for discharge review, received 020411, 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 030124.  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

Dear Review Board,

I am submitting this package, in hopes of getting my discharge changed to an honorable one.  I had an exemplary military career up to this point; I was the "picture perfect Marine".  This, of course, all changed when I met and married my wife.  As I support my case, you will see that since January of 2001, I was a constant victim of harassment and forced out of the military. I first Met G_ in July of 2000.  I could not believe how much we had in common and it was what you could call 'love, at first sight", for the both of us.  We were both in love, with every fiber of our beings.  We made the decision to marry on January 13 of 2001.  Soon after being married, I brought G_ to work to meet all the Marines that I worked with.  At this time I was stationed at Expeditionary Warfare Training Group, Naval Amphibious Base, Coronado, CA. My Officer in Charge (CWO3 J_), sat me down, and CWO3 J_ put in two in his office and called my wife a "junkie", saying she took too much medicine.  He told me that I should get an annulment, this made both of us extremely upset.  I was so distraught at this point I went to talk to the chaplain.  As the chaplain and I talked, I requested mast to the Commander, and the chaplain contacted him as well to let him know of what was happening.  Soon I moved sections and was working for another OIC.  I Had orders to transfer to Camp Pendleton, which was my incentive for reenlisting modifications to my orders to make me stay longer saying, "I was the only person to do the job".' At this point, I was also driving 87 miles one way and putting a financial hardship on my family.  I had set up a number of medical appointments after my orders had taken effect, because I would have been on leave.  When the modifications were approved, I could no longer make these appointments.  I tried to take leave, and even though I had leave time, I was denied.  This caused me to have to request mast, and this time to the General.  I talked with the XO and I agreed to stay on, so long as I was not harassed.
At last, I thought the harassment was over, and I was headed for Camp Pendleton.  This just opened up more problems:
-     I had those appointed over me calling G_'s ex-husband, who happened to be a Marine.
-     Even though I was enrolled in the
 	Exceptional Family Member program, I was
	          hold that I was making it up by members in my command.
-	  I was asked to prove that G_ was ill, several times, which I did    
       show them.
-	  I was accused of tampering with my vehicle, so I didn't have to       
       go to work.
-	I was told that I'm making up all my wife's appointment's, I  
      had to give her a ride being she didn't have a driver's license  
     (epilepsy).
-	I was not allowed to finishing checking in at my new duty station on Camp Pendleton.
-	I was in the process of writing up a humanitarian discharge.
-	We had called several chaplains, social workers, and even called the Commandant of the Marine Corps.
-	I was humiliated by being sent to the Brig for 18 days.
-	The Commanding officer lied about trying to help me.

I have suffered much because of lack of compassion on the Militaries unwillingness to try and help me.  It saddens me to think that I dedicated my very life to defending our country and when I needed my country they forsook me and crucified me.  As you research my military records you will discover that I was a quality Marine, receiving numerous awards.  I was respected by my peers and was always willing to lend a helping hand, especially to those junior to me.  I loved to be a Marine; I admired all those who died, so we might enjoy what we have today.  I know that being a Marine was a 24/7 job, and I respect that.  I did not do all these things to undermine my superiors; I did them for my family.  I love my wife and always will, even though she is gone.  I now ask that you have mercy upon me and restore my good name.  I testify that all this information is true, and if it is not enough I will be willing to make a personal appearance before you.

Respectfully,
Signed by Applicant

Documentation

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

Copy of Wife's Certificate of Death
Copy of Letter of Notification into Marine Corps Exceptional Family Program
Copy of Letter of Explanation for NJP to Colonel T_ E. B_ (2 pages)
Copy of Handwritten Letter for Applicant's Wife about harassment
Copy of DD Form 214
Copies of Wife's Prescriptions (2)
Copy of Forwarding of Exceptional Family Member Package Letter
Copy of Exceptional Family Member Package (6 pages)
Copy of Wife's Prescription Chart 
Copies of Laboratory Reports (2 pages)
Copies of Records Added to Exceptional Family Member Program (2 pages)
Letter from Commanding Officer in reference to Unauthorized Absence
Copy of Application for Service from Muscular Dystrophy Association (3 pages)
Letter from Applicant in reference to Wife's diagnosis with Myopathy Disease
Copies of Exceptional Family Member Program Record of Modification
Copy of Letter of Introduction from Lake Forest Medical Group, Inc confirming Wife's muscle disease
Copy of Housing Request
Copy of Family Housing Application
Copy of Request for Hardship Discharge
Copy from Marine Corps Manual (Dependency or Hardship)
Copy of Recall Roster (4 pages)
Copy of Check in and out Sheet 
Copy of Request for Mast Application
Letter from Applicant Requesting Mast
Copy of Permanent Change of Station Orders
Copy of Orders Modification (2 pages)
Copy of Permanent Change of Station Orders Report
Letter from Applicant

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		 970128 - 001126	HON
	Inactive: USMCR(J)		 970123 - 970127	COG

Period of Service Under Review:

Date of Enlistment:  001127		Date of Discharge:  010713

Length of Service (years, months, days):

	Active:   00  07  16
	Inactive:  None

Age at Entry:  26			Years Contracted:  4 

Education Level:  12			AFQT:  54

Highest Rank:  Cpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.6 			Conduct:  3.1  (Extracted from SJA's Letter) 

Military Decorations:  None

Unit/Campaign/Service Awards:  MUC, NMCAM, GCM, SSDR(2), Meritorious Mast(2), Rifle Sharpshooter Badge

Days of Unauthorized Absence:  33

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:

001127:	Reenlisted at Expeditionary Warfare Training Group Pacific, NAB Coronado, San Diego, CA for 4 years.

010509:	Counseled for deficiencies in performance and conduct.  [UA from 1300, 010423 to 1000, 010424.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

xxxxxx:	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: Did, on or about 010530, without authority, absent himself from his unit, to wit: Headquarters Support Battalion, located at Camp Pendleton, CA and did remain so absent until on or about 010625.  Additional Charge: Violation of the UCMJ, Article 86: (2 Specifications), Spec 1: Did, on or about 010510, without authority, absent himself from his unit, to wit: Headquarters Support Battalion, located at Camp Pendleton, CA and did remain so absent until on or about 010511; Spec 2: Did, on or about 010512, without authority, absent himself from his unit, to wit: Headquarters Support Battalion, located at Camp Pendleton, CA and did remain so absent until on or about 010518.

010712:	SJA review determined the case sufficient in law and fact.

010713:	GCMCA [Commanding General] 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 010713 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.  In the Applicant’s request for separation in lieu of trial by court-martial, he 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 charges of unauthorized absence.  The Applicant failed to provide sufficient documentation to substantiate his allegations of unfair treatment by his chain of command, or how the alleged mistreatment should mitigate his misconduct.  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.  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 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.

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