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

  ex-PFC, USMC
Docket No. MD03-00926

Applicant’s Request

The application for discharge review was received on 20030425.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a documentary record discharge review.  The Applicant listed the Disabled American Veterans as the representative on the DD Form 293.

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.  “CHARGE I: My discharge was inequitable because it was based on the fact that, on the dates cited, I was only two to five minutes late for duty at the rifle range and the supervisors allowed me to continue with activities and did not report my tardiness.  My NCO was on site, but did not report my tardiness until two weeks later.  The lateness was caused by the fact that I lived off base (with permission) and was ordered by my commanding officer to provide transportation to the rifle range for a fellow marine in my unit.  My only infraction was a faulty sense of precision timing.

CHARGE II:  This charge is faulty because it is based upon the premise that an order was issued.  In fact. Sgt S_ offered a suggestion, not an order. when he recommended that I stay in the barracks.  I took the recommendation under advisement as such and not as an order to be obeyed.  Had an order been issued, of course I would have obeyed it.

CHARGE III: The discharge was improper because if I had not shaved for four days as accused in this charge, I would not have been allowed on the rifle range by the suprvisors to continue my duties.  I, in fact, did shave every morning using a Mach 3 razor.”

I further offer consideration of my Certificates of Appreciation for volunteer duty as evidence of my attitude of pride and eagerness to contribute off-duty time and effort to the success of extra-curricular activities on base as becoming a Marine. ”

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

2.  “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 the 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 to that of Honorable.

The FSM served on active service from May 22, 2000 to May 7, 2002 at which time he was discharged due to Misconduct. 

As the FSM has not submitted any documentation in support of his claim, we as the representative, 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:

Three pages from Applicant’s service record
Applicant’s DD Form 214 (Member 1 and 4)
Appointment of Veterans Service Organization as Claimant’s Representative, VA Form 21-22, dated June 29, 2003 (3)
Statement in support of claim, VA Form 21-4138, dated March 18, 2003

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		000111 - 000521	COG

Period of Service Under Review:

Date of Enlistment:  000522		Date of Discharge:  020703

Length of Service (years, months, days):

	Active:    02  01  12
	Inactive:  None

Age at Entry:  21			Years Contracted:  4

Education Level:  12			AFQT:  49

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages:*

Proficiency:  3.8			Conduct:  3.8

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, Certificate of Appreciation (2)

Days of Unauthorized Absence:  None

*Extracted from Staff Judge Advocate letter dated 020626

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:

001121:	NJP for violation of UCMJ, Article 86:
Specification 1: Fail to be at the prescribed appointed place of duty on 2145, 001120 to 0030, 001121.
Awarded forfeiture of $200.00 per month for 2 months, restriction and extra duties for 30 days.  Forfeiture for 1 month, restriction and extra duty for 15 days suspended for 3 months.  Not appealed.

001129:	Counseled for deficiencies in performance and conduct.  [Not being at appointed place of duty at the prescribed time and place.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010615:	NJP for violation of UCMJ, Article 86:
Specification: Unauthorized absence on 0600, 010611.
Violation of UCMJ, Article 92:
Specification: Failure to obey an order or regulation. 
Awarded forfeiture of $243.00, restriction and extra duties for 14 days.  Not appealed.

011024:	NJP for violation of UCMJ, Article 86 (3 specs):
Specification 1: Unauthorized absence from appointed place of duty on 010827.
Specification 2: Unauthorized absence from appointed place of duty on 010901.
Specification 3: Unauthorized absence from appointed place of duty on 010927.
Violation of UCMJ, Article 92 (3 specs):
Specification 1: Failed to obey order and regulation on 010827.
Specification 2: Failed to obey order and regulation on 010831.
Specification 3: Failed to obey order and regulation on 010911.
Awarded forfeiture of $584.00 per month for 2 months, restriction and extra duties for 45 days, reduction to PFC.  Forfeiture for 1 month suspended for 1 month. Not appealed.

011026:	Counseled for deficiencies in performance and conduct.  [Three specs of unauthorized absence and three specs of failure to obey order or regulation.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020613:	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): (1) Fail to go at the time prescribed to appointed place of duty on 0530, 020318, (2) Fail to go at the time prescribed to appointed place of duty on 0530, 020319, (3) Fail to go at the time prescribed to appointed place of duty on 0530, 020321, Article 91: Willfully disobey a lawful order from Sergeant, to wit: to spend the nights in barracks room and not to spend the nights off base for the remainder of the rifle range detail, and Article 92: Violate a lawful general order from 020318 through 020321, to wit: failing to shave.

020626:	SJA review determined the case sufficient in law and fact.

020628:	GCMCA [Commanding General, Marine Air Ground Task Force Training Command, Marine Corps Air Ground Combat Center] 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 20020703 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 and 2.  On 20020613, 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 Applicant admitted guilt to the charges against him.  That the Applicant now claims he is not guilty of the charges that led to his request for separation does not mitigate his misconduct or refute the presumption of regularity in this case.  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.

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; Article 91, disobedience to a NCO; and Article 92, failure to obey a lawful order.

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