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

  ex-PFC, USMC
Docket No. MD03-00963

Applicant’s Request

The application for discharge review was received on 20030508.  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 listed the American Legion as the 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 20040415.  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.  “For the first six months of my enlistment I received no housing or food allowance even though I presented my marriage license and all relevant birth certificates to my recruiter M.E.P.S. and the proper administrative personal throughout boot camp and infantry school.  Furthermore, I was unsuccessful in all attempts to have my bills paid directly out of my monthly pay.  Since these issues were so crucial to the well being of my family, I made sure to raise these matters before I enlisted.  My recruiter ensured me that these issues would be cared for.  However, by the time I started to receive the correct pay, my bills were way behind and I was struggling to provide my family with the basic essentials.  I tried to receive backed pay but my superiors told me that I was owed no money.  When I left my post at Camp Pendleton, it was only to return to my civilian job, where I was sure to care for my number one responsibility.  Finally after spending two months in the brig without pay and being discharged, I received almost $4,000.00 that was in fact owed to me for the first six months of my enlistment.  Had I received this pay when I was supposed to, or even when I attempted to be back paid at Camp Pendleton, I would have never left my post.”

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

“2.  (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.”

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)		990522 - 990524	COG

Period of Service Under Review:

Date of Enlistment:  990525		Date of Discharge:  010105

Length of Service (years, months, days):

	Active:   01  07  11	Does exclude lost time
	Inactive:  None

Age at Entry:  25			Years Contracted:  4

Education Level:  12			AFQT:  74

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  NMF*			Conduct:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence: 221

* No Marks Found in the service record

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:

000204:	Counseled for deficiencies in performance and conduct.  [Unauthorized absence and not following orders from superiors appointed over you.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000327:	Applicant to unauthorized absence 0731, 000327.

000426:	Applicant declared a deserter.

000515:	Applicant from unauthorized absence 0730, 000515 (48 days/surrendered).

000515:	Counseled for deficiencies in performance and conduct.  [Unauthorized absence, and failure to maintain your military issued gear.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000518:	Applicant to unauthorized absence 0731, 000518.

001104:	Applicant apprehended by civil authorities 2130, 001104.

001107:	Applicant returned to military control (173 days).

Applicant’s separation package missing from service record

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010105 under other than honorable conditions in lieu of trial by court-martial (A and B).  In the absence of a discharge package, 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.  A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a Marine.  The Applicant’s service was marred by his extended unauthorized absence.  The Applicant requested separation under other than honorable conditions in lieu of trial by 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.

Issue 2.  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