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

ex-LCpl, USMC
Docket No. MD02-00956

Applicant’s Request

The application for discharge review, received 020618, 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 030331.  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.  Ladies and Gentlemen I understand that my actions were uncalled for and above all stupid.  But, I hope that I can prove that I am sorry.  If I could do it over again I would not have went UA.  I have been a civilian for several months, I have also maintained a steady job working construction work for Carpenters Local 225, Atlanta, GA.  I would like to go to college to presue my engenieers degree.  My wife and child mean the world to me and every thing I do, I do to make things better for us.  I hope that you can find it in your hearts to let me fulfill my dream.  Thank you for your time.

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Inactive: USMCR(J)		980724 - 980727	COG
	Active:   USMC		None

Period of Service Under Review:

Date of Enlistment:  980728		Date of Discharge:  010618

Length of Service (years, months, days):

	Active:   02  10  21	Does not exclude lost time
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  57

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.1 (7)			Conduct:  4.1 (7)

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, MM

Days of Unauthorized Absence:  259(000807-010423)

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:

000322:	Applicant informed eligible but not recommended for promotion to Cpl for the Apr-Jun promotion period due to lack of military appearance and needing to work on PFT run.

000614:	Applicant informed eligible but not recommended for promotion to Cpl for the Jul-Sep promotion period due to lack of physical endurance.

000620:	Counseled for deficiencies in performance and conduct (Failure to conform to prescribed Marine Corps height and weight standards).  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000807:	Applicant to unauthorized absence this date.

000906:	Applicant declared a deserter 

010426:	Applicant from unauthorized absence this date; apprehended by civil authorities on 010423 (2359) at Haralson County Sheriff's Department.  Returned to military control 010426.  Delivered to HPSPTBN, MCB, Camp Lejeune, NC.

010502:	Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 86: Unauthorized absence from 000807 to 010423 (259 days/apprehended).

010510:	Applicant, having consulted with counsel certified under UCMJ Article 27(b), requested discharge for the good of the service to avoid 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 honorable conditions.  The Applicant admitted guilt to the following violations of the UCMJ: Article 86: Unauthorized absence from 000807 to 010423 (259 days).

010523:	Commanding Officer, H&SBn, MCB, Camp Lejeune, NC recommended to the separation authority approval of Applicant's request for separation in lieu of trial by court-martial.

010607:	SJA review determined the case sufficient in law and fact.

010614:	GCMCA (Commander, Marine Corps Base, Camp Lejeune, NC) directed the Applicant's discharge under other than honorable conditions in lieu of trial by court-martial.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 010618 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 contends that his immaturity as a young Marine led him into making imprudent decisions and that this fact should be considered in the recharacteriza-tion of his discharge.  Regardless of his immaturity, the Board found that the Applicant's age, education level, and test scores qualified him for enlistment.  While the Board recognizes that the Applicant has accepted responsibility for his actions, his service record clearly reflects his disregard for the requirements of military discipline and demonstrates that he was unfit for further service.  The Applicant's misconduct, as established through his acceptance of administrative separation in lieu of trial by court-martial, warranted processing for discharge normally under other than honorable conditions.  The records the Board reviewed showed the separation process to be proper and equitable.  Relief on this basis is denied.

The Applicant further contends that aspects of his post service conduct, to include family stability, employment, and intentions of continuing his education, should be considered in the recharacterization of his discharge.  There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service.  However, the NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  Outstanding post-service conduct, 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 may be considered.  Verifiable proof of 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, and certification of non-involvement with civil authorities are examples of verifiable documents that may be provided to receive consideration for relief based on post-service conduct.  At this time, the Applicant has not provided such documentation for the Board to consider an upgrade.

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, Absence without leave (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