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

  ex-PVT, USMC
Docket No. MD03-00936

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 honorable.  The Applicant requests a documentary record discharge review.  The Applicant listed 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/Conduct triable by courts-martial (request for discharge for the good of the service), authority: MARCORSEPMAN Par. 6419.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1.  At the time of my discharge of service my son was born with a heart murmur and I was not allowed leave to go be with him.  There were many other circumstances, which occurred to compile the choice I made in going UA.  Before this situation took place I was on 30 days leave.  While on leave I was recalled from Dallas to Yuma by my first Sgt. to take a urinalysis because I was suspected of drug use.  
    I was proven clean.  When my son was born I requested leave again to go be with him and was denied.  The chaplain said that he couldn’t help me so I left and went home.  At the time I had 63 days of leave on the books but it didn’t matter.  I was denied. 
    After that situation took place other things happened (all bad) and I was discharged.”

Additional issues submitted by Applicant’s counsel/representative (DISABLED AMERICAN VETERANS):

2.  “Equity regarding the character of discharge.”

3.  “Based on the contention of the petitioner, as well as an overview of the available records it is requested the Board complies with the petitioner’s request that his discharge be upgraded.  It is very important that the Board consider all contributory factors surrounding this case coupled with the impetuosity of his youth, and even though infractions did constitute military misconduct, he is not a criminal.  Therefore, with all the evidence as set forth herein, we humbly request any and all reasonable doubt that has occurred be resolved in favor of the Applicant and corrective action be taken to upgrade the Applicant’s discharge.”

Documentation

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

Statement in Support of Claim
Cover Letter from DAV
Memorandum from DAV
Address Change Letter from DAV
Veterans Service Organization Claim Form (3 pages)
Copy of DD Form 214
Certificate of Ordination dated March 16, 2002
Discharge Authority from Department of Army dated June 19, 1985
Transcripts from Jacksonville Theological Seminary (2) 

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USAR		840509 - 850215	HON
	Inactive: USMCR(J)		850216 - 850603	COG

Period of Service Under Review:

Date of Enlistment:  850604		Date of Discharge:  900521

Length of Service (years, months, days):

	Active:    04  11  18
	Inactive:  None

Age at Entry:  18			Years Contracted:  6

Education Level:  12			AFQT:  63

Highest Rank:  Cpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.8 (12)			Conduct:  3.8 (12)

Military Decorations:  None

Unit/Campaign/Service Awards:  COC, GCM, SSDR

Days of Unauthorized Absence:  62

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

UNDER OTHER THAN HONORABLE CONDITIONS/Conduct triable by courts-martial (request for discharge for the good of the service), authority:  MARCORSEPMAN Par. 6419.

Chronological Listing of Significant Service Events:

851024:	NJP for violation of UCMJ, Article 92: Violate company order by possessing alcoholic beverage in quarters.  
	Awarded forfeiture of $50.00.  Not appealed.
		
880614:	Counseled for deficiencies in performance and conduct.  [Chronic light duty related to psychosomatic disorder; repeated failure of the physical fitness test.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

880614:	Counseled for deficiencies in performance and conduct.  [Conduct unbecoming a non-commissioned officer: Domestic violence on base housing.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

881228:	Counseled for deficiencies in performance and conduct.  [Inadequate performance as a Marine NCO in handling personal financial matters, i.e., (4) checks returned for insufficient funds totaling $239.17.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

890414:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 86.
	Specification: Absent from unit, A Btry, 1st LAAMBN, from 881201 to 890203, terminated by apprehension.  Charge II: violation of the UCMJ, Article 87: Missed movement to 29 Palms, CA on or about 881204 through design. 
	Finding:  to Charge I and II, and the specifications thereunder, guilty.
	Sentence:  Forfeiture of $466.00 pay per month for 1 month, 60 days restriction to the limits of work, billeting, place of worship, and medical and dental facilities, reduced to E-1.
	CA action 890424:  Sentence approved and ordered executed except for reduction below LCpl/E-3 is hereby suspended for a period of one year from the date of trial.

900208:	Vacate suspended reduction.

900424:	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, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: ADNCO, Building #930 located at Marine Corps Air Station, Yuma, Arizona and Article 92, failure to obey a lawful order issued on or about 900121 by the Commanding Officer 2d Light Antiaircraft Missile Battalion, to wit: Battalion Order 1050.1G dated 891130, by wrongfully going to Mexico without authorization or a Liberty Request/Out of Bounds Pass in his possession.

900503:	SJA review determined the case sufficient in law and fact.

900511:	GCMCA [Commanding General, 3d MAW] 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 19900521 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 1-3.  On 19900424, 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 referred to a special court-martial.  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 P1900.16D), effective 27 Jun 89 until 17 Aug 95.

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 87, missing movement; and Article 92, disobey 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