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

 ex-LCpl, USMC
Docket No. MD02-00822

Applicant’s Request

The application for discharge review, received 020517, 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 030214.  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.  The discharge was improper because of the hazing that had been performed against myself in front of fellow military personnel.  Myself and my roommate was going to have a weekly field day inspection the next day.  I told my roommate the day before the filed day inspection that he needed to clean up his side.  He told myself that his side would be cleaned up in the room.  I was told to report at our room that had already been inspected.  My side of the room was thoroughly cleaned, but I was getting blamed for my roommates side not being cleaned.  A sergeant that had inspected our room was from the office I had worked at for the unit.  This same sergeant had requested for the fellow military personnel that I worked with to witness while standing in my room, himself destroying my side of the room.  This sergeant had taken a stick to puncture a hold through the mattress I slept on and actually had done so.  Also this sergeant had kicked over furniture items and had threw my clothes from a wall locker across the room.  I had been restricted to the unit and fined with a reduction of pay.  The other thing I had to do was pitch a shelter half outside by the duty hut to sleep in from Fri. to Mon.  Due to the embarrasement of all the hazing in front of fellow personnel and being blamed for something that wasn't my fault, I decided to AWOL the unit.  After going AWOL, I realized that I needed to turn myself in so I wouldn't have to worry about being caught.  At this present time I realize that I shouldn’t of went AWOL because since being out I’ve taught Bible school classes at Vessels of Honor 225 Chester Ave. Bakersfield, CA 93301/(phone # deleted).

Documentation

Only the service and medical records were reviewed, as the Applicant did not provide additional documentation for the Board to consider.  

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		951211 - 960109	COG

Period of Service Under Review:

Date of Enlistment:  960110		Date of Discharge:  970404

Length of Service (years, months, days):

	Active:   01  02  25
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  42

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (3)			Conduct:  4.1 (3)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Marksmanship Badge

Days of Unauthorized Absence:  46

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:

960110:	Waiver granted for pre-service marijuana use.

961204:	Counseled for deficiencies in performance and conduct [being UA for 4 hours on 961202].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

961207:	Unauthorized absence since 1001, 961207.

961224:	Surrendered on-board at 1635 (16 days). 

970108:	NJP for violation of UCMJ, Article 86:  Unauthorized absence from 1001, 961207 to 1634, 961224.
Awarded forfeiture of $237.00 per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

970210:	Applicant declared a deserter having been an unauthorized absentee since 0901, 970111 from 11th Marines, 1st Marine Division.

970211:	Applicant apprehended by civil authorities on 970211 (0900) at I-I Lansing, MI.  Delivered to CO HQ Btry, 11th Mar, Camp Pendleton NLT 2359, 970211.

970219:	Pre-Trial Confinement.  Charge Sheet for violations of the UCMJ, Article 86: on or about 11 January 1997, without authority, absent himself from his unit, to wit:  Headquarters Battery, 11th Marines, 1st Marine Division (Rein), located at Camp Pendleton, CA and did remain so absent until on or about 11 February 1997 referred for trial to the special court-martial convening authority.

970312:	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: on or about 11 January 1997, without authority, absent himself from his unit, to wit:  Headquarters Battery, 11th Marines, 1st Marine Division (Rein), located at Camp Pendleton, CA and did remain so absent until on or about 11 February 1997.

970321:	SJA review determined the case sufficient in law and fact.

970324:	GCMCA [CG, 1st MarDiv (Rein)] determined that due to Applicant’s pending offense and prior record of 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 court-martial.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 970404 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.  While he may feel that alleged demeaning treatment by his chain of command should mitigate his misconduct, 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 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