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

 ex-Pvt, USMC 
Docket No. MD03-00597

Applicant’s Request

The application for discharge review was received on 20030221.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests 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, 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 20040114.  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 stated

Applicant’s issues, as stated on the application:

“1.  I do not believe the charges warranted an other than honorable Discharge.  I was stuck in student status for more than 2 years.  I believe, looking back, that I was reacting to a very bad, and extremely boring situation, but have learned from those actions and my experiences in the Corps.  Nothing was done to change any of that, and this Discharge limits everything I would like to do in the present.  I would like my discharge upgraded so that I could move on with my life.”

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):

	Active:   None
	Inactive: USMCR(J)		970530 - 971027	COG

Period of Service Under Review:

Date of Enlistment:  971028		Date of Discharge:  990615

Length of Service (years, months, days):

	Active:   01  07  18	Does not exclude lost time
	Inactive:  None

Age at Entry:  24			Years Contracted:  4

Education Level:  10 GED		AFQT:  67

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  2.0 (2)			Conduct:  1.8 (2)

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  90

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:

980424:	Counseled for deficiencies in performance and conduct.  [You were not at appointed place of duty on 0700, 980424.  You were found asleep in the barracks.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980513:	NJP for violation of UCMJ, Article 86:
Specification: Absent without leave 1000-1300, 980502.
Awarded forfeiture of $100.00 per month for 1 month, restriction and extra duties for 30 days, reduction to Pvt.  Reduction suspended for 3 months.  Not appealed.

980618:	Vacate suspended reduction to Pvt awarded at Commanding Officer’s NJP dated 980513.

980814:	NJP for violation of UCMJ, Article 86 (5 specs):
Specification 1: Unauthorized absence from SPT at 0530, 980803
Specification 2: Unauthorized absence from SPT on 980805.
Specification 3: Unauthorized absence from SPT on 980807.
Specification 4: Unauthorized absence from SPT on 980810.
Specification 5: Unauthorized absence from school at 0745, 980803.
Violation of UCMJ, Article 92:
Specification: Failure to obey an order or regulation by not shaving when told to do so by a SNCO.
Awarded restriction and extra duties for 45 days.  Not appealed.

980819:	Counseled for deficiencies in performance and conduct.  [Failing to use good judgment by not reporting for special physical training under the assumption that your attendance was no longer required.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980827:	Counseled for deficiencies in performance and conduct.  [Pattern of misconduct and frequent violation of the UCMJ.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990513:	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 (3 specs): Unauthorized absence from 0701, 981120-1645, 990219 (90 days/surrendered), unauthorized absence on 0700, 980920, unauthorized absence 0900, 980920; Article 134: Breaking restriction on 980923.

990604:	SJA review determined the case sufficient in law and fact.

990604:	GCMCA [Commanding General, 2d Marine Aircraft Wing, Cherry Point, 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 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 19990615 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.  On 19990513, the Applicant, after consulting with counsel, 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 violation of Article 86 and Article 134 of the UCMJ.  While he may feel that boredom was a factor that contributed to his actions, the record clearly reflects his disregard for the requirements of military discipline and demonstrated that he was unfit for further service.  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.  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, to enhance employment opportunities, or for 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 for more than 30 days; and Article 134, break restriction.

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