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

 ex-PFC, USMC
Docket No. MD03-00782

Applicant’s Request

The application for discharge review was received on 20030326.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing discharge review 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 20040303.  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.  “To whom it may concern,

I am requesting an upgrade to Honorable on my discharge and also an upgrade on my reenlistment code for the following,

My name is E_ M_ S_ (Applicant) and I enlisted in the United States Marine Corps in June of 1999 and I went to boot camp on Sept. 18 1999 and graduated on Dec. 17 1999.  I then went on to MCT and afterwards went to Pensacola to start training for Air Crew Chief.  I was at the doctors for the physical when they pulled me out for a S.L.A.P. tear surgery, which was scheduled for April of 2000, after the surgery I was put on medical hold and was put on the barracks cleaning crew for about 3 mths.  I was put back into school at the end of June and after week 3 we were set to be graduating in I and a half weeks and at that point I was accused of smoking and providing weed and alcohol to some other Marines and I took a voluntary drug test and passed and then took 4 more in the next 2 weeks while the investigation was under way and all came back negative for use.  I was then sent up for a NJP for violation of article 92 (violation of curfew) and was then given 30 days restriction and also loss of school and rank and also loss of the College fund and one half months pay for two months, the rank loss and the loss of pay were put on hold for 90 days and then I also was set to be shipped totally out of the Air wing side of the Corps and be put into Electrical Engineer over in Camp Lejune.  (I feel this was a harsh punishment as at the same NJP there was a female Marine who was going up for her second time of being caught drinking underage and she only received 10 days of extra duty).  I asked my First Sergeant if they would appeal this and was told no that was what the Marine Corps had wanted.  I did my restriction time and then requested leave to go home and see my wife and try to work through some financial problems we were having and was granted that.  I was home for about 10 days when I realized that things were way worse than they had been made out to me over the phone by my wife and so I called my new school to request extra time for leave about 2 weeks, and was told I could have only three days, which I told the Master.  Sergeant that that was not enough time and was told that was the end of the discussion.  I then ended up going UA to clear up some of the problems that we were now having including talk of divorce also.  I had most everything straightened out by Thanksgiving and a couple of friends and I went up snowboarding at Keystone Mtn.  And I hit a tree and was flown flight for life down to a local hospital and was in ICU for 6 days which during this time I had my wife contact her USMC Recruiter to let him know what had happened and that I was UA and my mother also called and let my duty station know what was going on.  I ended up calling a Cpl.  In San Diego with the chasers and let him know where I was staying at and he sent the police to pick me up and also the chasers to bring me to Camp Lejune.  I had no trouble at all with the chasers or the police and even with my command when I arrived.  I was asked to explain to my CO and my 1st Sgt what had happened and why and after I did I was told that they would have given me the time necessary to clear up the things needed if I had talked to them, but at that point it was too late.  I was asked by the CO if I wanted to stay in the Corps and I told him that at that time I didn’t since I was burned so to speak by the actions of myself and others and wanted to do my Brig time and get out.  I went to the brig for 6 and half weeks and then was let out and sent home.  I realized about 2months later that I had made a terrible mistake and have been trying for the last 2 years now to correct that mistake and get my self-respect and dignity back that I had as a US Marine.  I know that I can never have the title taken from me as I earned it in basic, but to know that I misrepresented the Corps that I love and the country I live in I long to be able to serve again and to wear the E.G.A.  I also would like to serve in any way even if that meant not being a Marine again and having to be in a different branch of service and to be able to hold my head up high and be proud.  I realize that you don’t know me and that you also get a lot of letters asking for a second chance, and so I am willing to do anything I have to too get this back even go through basic again and also even have half my pay taken away.  I am sincere and also I have had numerous things happen in my life that have changed my attitude and my thoughts.  I have a wonderful wife who now knows what it means to serve and be called away as she is in the USAF and has shipped oversees already to Turkey for TDY and knows what she was asking me to give up and is willing to stand beside me and weather the storms so to speak.  I also have gotten involved with some highly successful businessmen who have taught my wife and I many good principles for our individual and our married lives and I know that I will have their support in this endeavor as well.  I ask you to think on this and then to have me stand before you so you can see the person to whom this is referring and to ask me the questions that you would like to ask and to then judge and make a final decision.  I thank you for your time and your patience with this proceeding.

Sincerely,
E_ M_ S_ (Applicant)”

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:   USMC		None
	Inactive: USMCR(J)		990621 - 000115	COG

Period of Service Under Review:

Date of Enlistment:  000116		Date of Discharge:  010315

Length of Service (years, months, days):

	Active:   01  02  00
	Inactive:  None

Age at Entry:  23			Years Contracted:  5 

Education Level:  12			AFQT:  74

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (1)			Conduct:  4.2 (1)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Expert Badge

Days of Unauthorized Absence:  118

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:

001003:	Applicant declared a deserter on 001102, as of 0701, 001003.

010129:	Applicant apprehended by civil authorities on 010129 (1045) at 15001 E Alameda, Aurora CO.  Returned to military control 010130.

010215:	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: UA from his organization 001003 until apprehended 010130.

010312:	DSJA review determined the case sufficient in law and fact.

010314:	GCMCA [Commanding General, Marine Corp Base, 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 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 20010315 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 20010215, 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 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 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.  

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.

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