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

 ex-LCpl, USMC  
Docket No. MD03-00403

Applicant’s Request

The application for discharge review, received 20030107, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance hearing before the Board in the Washington National Capital Region.  The Applicant listed a civilian counsel as the representative on the DD Form 293.

Decision

A personal appearance discharge review hearing was conducted in Washington, D.C. on 20030925.  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 four to one that the character of the discharge shall not change.  The discharge shall remain: UNDER CONDITIONS OTHER THAN HONORABLE /Separation in lieu of trial by court-martial, authority:  MARCORSEPMAN Par. 6419.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

Issue 1.  Equity. A discharge upgrade is warranted based upon consideration of Former Lance Corporal F_ A. M_’s (hereinafter referred to as “Mr. M_”) service record and the other evidence presented to the Navy Discharge Review Board, particularly that evidence showing his post-service conduct.

Issue 2.  Equity.  A discharge upgrade is warranted based upon consideration of arbitrary and capricious actions by those in Mr. M_’s command.  This includes actions by individuals in authority which constitute a clear abuse of such authority and that, although not amounting to prejudicial error, may have contributed to the decision to discharge the individual or unduly influence the characterization of service.

Documentation

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

Letter from Applicant
Partial DD Form 214
Character reference, dated February 11, 2003
Fairmont State College transcript (2 pp.)
Character reference, dated February 18, 2003
Character reference, dated February 14, 2003
        Application for review of discharge (45 pp.)

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		840131 - 840326	COG

Period of Service Under Review:

Date of Enlistment:  840327			Date of Discharge:  880114

Length of Service (years, months, days):

	Active:    03  09  18
	Inactive:  None

Age at Entry:  17 Parental Consent		Years Contracted:  4

Education Level:  10 GED			AFQT:  75

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (11)			Conduct:  3.6 (12)

Military Decorations:  None

Unit/Campaign/Service Awards:  MM, GCM

Days of Unauthorized Absence:  89

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

UNDER CONDITIONS OTHER THAN HONORABLE /Separation in lieu of trial by court-martial, authority:  MARCORSEPMAN Par. 6419.

Chronological Listing of Significant Service Events:

850930:	Counseled for deficiencies in performance and conduct.  [Failure to follow instructions, and to be at appointed place of duty.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

860212:	Counseled for deficiencies in performance and conduct.  [Repeated occurrences of not being at appointed place of duty at appointed time.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  [Date extracted from counseling dated 870501.]

870120:	Counseled for deficiencies in performance and conduct.  [Approximately 1 hour late from reporting back from a long weekend.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

870129:	NJP for violation of UCMJ, Article 86 (2 specs):
Specification 1: Failure to go at time prescribed to appointed place of duty on 0730, 870121.
Specification 2: Failure to go at time prescribed to appointed place of duty on 1100, 870125.
Violation of UCMJ, Article 92: Derelict in performance of duty by failing to prepare for Sgt's deployment inspection at 1400, 870123.
Awarded forfeiture of $30.00 per month for 2 months, correctional custody for 14 days, reduction to PFC.  Reduction and correctional custody suspended for six months.  Not appealed.

870501:	Counseled for deficiencies in performance and conduct.  [Periods of unauthorized absence as documented in SRB, specifically counselings on 850930, 860212, and 870120 as well as NJP held on 870129.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

870904:	Applicant to unauthorized absence 0630, 870904.

871202:	Applicant from unauthorized absence 1615, 871202 (89 days/apprehended).

871204:	Applicant delivered by guard and placed in confinement.

871217:	Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 86 (4 specs): 1) Fail to go at time prescribed to appointed place of duty on 1900, 870821, (2) Fail to go at time prescribed to appointed place of duty on 0630, 870831, (3) Fail to go at time prescribed to appointed place of duty on 0630, 870901, (4) Absent from unit 0630, 870904 until 1615, 871202; Article 91: Willfully disobeyed a lawful order on 870901.

871230:	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 (4 specs): (1) Fail to go at time prescribed to appointed place of duty on 1900, 870821, (2) Fail to go at time prescribed to appointed place of duty on 0630, 870831, (3) Fail to go at time prescribed to appointed place 0630, 870901, (4) Absent from unit 0630, 870904 until 871202; Article 91: Willfully disobeyed a lawful order on 870901.

880105:	SJA review determined the case sufficient in law and fact.

880106:	GCMCA [Commanding General, 2d Marine Division, Fleet Marine Force, Camp Lejeune, NC] 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 conditions other than honorable by reason of conduct triable by courts-martial.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19880114 under conditions other than honorable 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’s discharge characterization accurately reflects his service to his country.  There is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, to enhance employment opportunities, or for good conduct in civilian life, subsequent to leaving the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  Verifiable proof of any 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, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that may be provided to receive consideration for relief, based on post-service conduct.  The Applicant’s evidence of post-service conduct was found not to mitigate the offenses for which he was discharged.  Relief denied.

Issue 2.  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.  The Applicant 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’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service.  An upgrade would be inappropriate.  The Board found that the Applicant’s personal problems at the time and the perceived lack of support and/or arbitrary actions from his chain of command does not mitigate his conduct to a degree necessary not to be held accountable for his actions.  Relief denied.

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 P1900.16C), Change 2, effective 15 May 84 until 26 Jun 89.

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