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

  ex-PFC, USMC
Docket No. MD03-00050

Applicant’s Request

The application for discharge review, received 20021002, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions.  The Applicant requested a personal appearance hearing before the Board in the Washington National Capital Region.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter to the Applicant, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20030828.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  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.  I am writing on behalf concerning my application for an upgrade of discharge.  I am requesting that my discharge be upgraded so I can go back to the Marine Corps.  I at least want to complete my commitment and serve my country with strong pride and integrity.  I am looking forward to be hearing from you on my request.  Sincerely,

Documentation

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

DD Form 149, dated April 2, 2002

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		940618 - 950614	COG

Period of Service Under Review:

Date of Enlistment:  950615		Date of Discharge:  970228

Length of Service (years, months, days):

	Active:   01  08  14	Does not exclude lost time
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  55

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  2.8 (6)			Conduct:  4.1 (4)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence: 212

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:

960314:	Applicant in hands of civilian authorities 0001, 960314.

960315:	Applicant released from civilian custody 1130, 960315 (1 day).

960315:	Applicant to unauthorized absence 1131, 960315.

960318:	Applicant from unauthorized absence 1215, 960318 (3 days/apprehended).
960412:	NJP for violation of UCMJ, Article 86:
Specification: Unauthorized absence from 0715, 960313 until 0745, 960318 (5 days).
Awarded restriction and extra duties for 12 days.  Appealed 960412.  Appeal denied 960412.

960510:	Counseled for deficiencies in performance and conduct.  [Frequent involvement with military/civilian authorities and minor incidents prejudicial to good order and discipline.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960522:	Applicant to unauthorized absence 0631, 960522.

960621:	Applicant declared a deserter on 960621 having been an unauthorized absentee since 0631, 960522.

960815:	Applicant apprehended by civilian authorities 1620, 960815.

960816:	Applicant to confinement.

960821:	Applicant from confinement.

960913:	Applicant to unauthorized absence, 0715, 960913.

961226:	Applicant from unauthorized absence, 1514, 961226 (apprehended), returned to military control 1820, 961226. Applicant detained at Beaver, West Virginia until delivered on 2000, 970115.

970115:	Applicant to pretrial confinement.

970127:	Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ), Article 86:  Unauthorized absence from 0715, 960913 to 970114 (122 days/apprehended).

970212:	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: Unauthorized absence from 960913 to 970114 (122 days/apprehended).

970221:	SJA review determined the case sufficient in law and fact.

970224:	GCMCA [Commanding General, 2d Force Service Support Group] 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 19970228 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 requested discharge for the good of the service to escape trial by court-martial.  In the request the Applicant 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’s discharge characterization accurately reflects his service to his country.  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.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  Relief is therefore denied.

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