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

 ex-LCpl, USMC   
Docket No. MD03-00269

Applicant’s Request

The application for discharge review was received on 20021126.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant listed American Legion as the representative on the DD Form 293.  In the acknowledgement letter to the Applicant, he was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington, D.C. area.  Subsequent to the application/acknowledgement letter, the Applicant requested a personal appearance hearing.

Decision

A personal appearance discharge review hearing was conducted in Washington, D.C. on 20040408.  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 at the time of issue.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Conduct triable by courts-martial (request for discharge for the good of the service), authority:  MARCORSEPMAN Par. 6419.   

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Issues submitted by Applicant’s representative (American Legion):

 “1.  (Equity Issue) This former member requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.”

Documentation

In addition to the service record, ONLY A PARTIAL DISCHARGE PACKAGE WAS AVAILABLE, the following additional documentation, submitted by the Applicant, was considered:

Copy of DD Form 214
Copy of Discharge Authorization
Employment Reference Letters (3)
Character reference from W_ H. D_
Letter from D_ P_
Criminal record check
Letter of recommendation from K_ B_
Grade history from Thomson education direct (3 pp.)

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		850909 - 860218	ELS
	Inactive: USMCR(J)		850410 - 850908	COG
861117 - 870105	COG
					
Period of Service Under Review:

Date of Enlistment:  870106		Date of Discharge:  900413

Length of Service (years, months, days):

	Active:    02  10  25  (Does not include lost time)
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  38

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  NMA*			Conduct:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Marksman Badge, SSDR, LOA, MM

Days of Unauthorized Absence:  132

*No Marks Available for review

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/Conduct triable by courts-martial (request for discharge for the good of the service), authority:  MARCORSEPMAN Par. 6419.

Chronological Listing of Significant Service Events:

880804:	NJP for violation of UCMJ, Article 86: Did on or about 0600, 880718, without authority, absent himself from his appointed place of duty, to wit: BCo, 2dAABn, and did remain absent until on or about 1030, 880718; violation of UCMJ, Article 92: Did on or about 880715, violate, 2dAABn Order 1050.2J, para 5E, by exceeding the 200 mile limitation from CLNC imposed on regular weekend liberty.
Awarded restriction and extra duties for 14 days.  Not appealed.

890406:	Counseled for deficiencies in performance and conduct.  [Uttering worthless checks and failure to maintain sufficient funds in your checking account.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

890417:	NJP for violation of UCMJ, Article 86: Did on or about 0600, 890404, fail to go to his appointed place of duty, to wit: BCo, 2dAABn, and did remain absent until on or about 0645, 890404.
Awarded  forfeiture of $200.00 pay per month for 1 month (suspended for 1 month).  Not appealed.

890714:	Counseled for deficiencies in performance and conduct.  [Operating a motor vehicle with a suspended license.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

890714:	Counseled for deficiencies in performance and conduct.  [Uttering worthless checks without sufficient funds in your account.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

891004:	UA 0630, 891004 to 1000, 891010 (6 days). 

891011:	UA 0630, 891011 to 900214 (126 days).

900405:	GCMCA [Commanding General, 2d MARDIV] 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 19900413 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.  A characterization of service of under other than honorable conditions is warranted when the member’s conduct constitutes a significant departure from that expected of a Marine.  The Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial.  The evidence of record does not demonstrate 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.

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 P1900.16D), effective 27 Jun 89 until 17 Aug 95.

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