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

  ex-Pvt, USMC
Docket No. MD03-00889

Applicant’s Request

The application for discharge review was received on 20030407.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance discharge review before a traveling panel closest to Waterbury, CT.  The Applicant listed the Disabled American Veterans as the representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington, D.C. area.  The NDRB also advised that the Board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040401.  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.  “My average conduct and efficiency ratings/behavior and proficiency marks were good [or pretty good].

2.  I received letters of recommendation.

3.  My record of promotions showed I was generally a good service member.

4.  I have been a good citizen since discharge.

5.  My ability to serve was impaired because of marital and family and child care problems.

6.  Personal problems impaired my ability to serve.

7.  Medical or physical problems I had impaired my ability to serve.

8.  Certain other problems impaired my ability to serve.

9.  I tried to serve and wanted to, but just couldn’t or wasn’t able to.

10.  I had tried to apply for a hardship discharge but was unfairly told to forget it.”

Additional issues submitted by Applicant’s representative (Disabled American Veterans):

11.  “Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current Other Than Honorable Discharge to an Honorable Discharge.

The FSM served on active service from November 14, 2000 to October 15, 2001 at which time he was discharged in lieu of trial by Court Martial.

The FSM contends the current discharge requires equitable relief, as his efficiency ratings were average to good; letters of recommendation were received; along with records of promotion. During his military service the FSM states that there were multiple personal, marital, and family problems that impaired his ability to service, and that since his discharge those problems a have been resolved and he has been a good citizen to present.

Within the evidentiary record the FSM submits supporting character reference statements, and medical records, but also a letter of appreciation from the United States Army, Ft. Sill, Oklahoma attesting to the high level of character and praising the FSM for his contributions to the Central Issue Facility.

The FSM submits the application not trying to make excuses for his actions, as he knows that he will have to live with his past actions for the rest of his life. But does request equitable relief and a fair review of the evidence of record.

This creates a need for a review of the application of the standard, for the Board to determine that the Applicant’s discharge was improper. The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted. See, SECNAVIST 5420.174 (c), Par. (f) (1).

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the Applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174C.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the Applicant.

Respectfully,”

Documentation

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

Applicant’s DD Form 214
Statement from Applicant, undated
Five pages of medical history on Applicant’s father
Letter from Applicant’s mother, undated
Doctor’s note, dated April 17, 2001 (2)
Doctor’s note, dated March 27, 2001
Doctor’s note, dated March 24, 2001
Doctor’s note, dated March 29, 2001
Social Security Administration, Retirement, Survivors, and Disability Insurance re Applicant’s mother, dated September 1, 2002
Medical records on Applicant (50 pages)
Memorandum, dated July 13, 2001
Standard Transfer Order, dated July 1, 2001
Five pages from Applicant’s service record
Character reference from Reverend, dated February 27, 2003
Character reference, dated February 25, 2003
Character reference, dated February 26, 2003
Character reference, undated
Character reference, undated
Character reference, dated February 28, 2003
Character reference, undated
Letter from Department of the Army, letter of appreciation, dated May 11, 2001

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		001019 - 001113	COG

Period of Service Under Review:

Date of Enlistment:  001114		Date of Discharge:  011015

Length of Service (years, months, days):

	Active:    00  11  02
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  61

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.4 (3)			Conduct:  3.5 (3)

Military Decorations:  None

Unit/Campaign/Service Awards:  Letter of Appreciation

Days of Unauthorized Absence:  25

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:

010807:	Applicant notified of competency review board.

010807:	Applicant acknowledged receipt of rights prior to competency review board.

010808:	Competency Review Board.
Findings of Fact: Applicant was on unauthorized absence from 010617 to 010712.
Opinions: Applicant’s unauthorized absence shows professional incompetence and a lack of self-discipline.
Recommendations: Applicant be reduced to Pvt.

010808:	Applicant reduced to Pvt as a result of competency review board.

010822:	Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 86:  Unauthorized absence from 0001, 010617 to 1600, 010712 (25 days/surrendered).

010926:	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 0001, 010617 to 1600, 010712 (25 days/surrendered).

011004:	SJA review determined the case sufficient in law and fact.

011010:	GCMCA [Commander, Marine Corps Base, Quantico, VA] 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 20011015 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).

Issues 1-11.  On 20010926, the Applicant requested discharge for the good of the service to escape trial by court-martial.  In the request the Applicant admitted guilt to the offense and certified a complete understanding of the negative consequences of his actions and that characterization of service would be under other than honorable conditions.  The statements and documentation provided by the Applicant and 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, 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.

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