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

  ex-LCpl, USMC
Docket No. MD03-01022

Applicant’s Request

The application for discharge review was received on 20030516.  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 review.  The Applicant did not list any representative on the DD Form 293.

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/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.  “Dear Sir or Madam

I am writing to you so you can evaluate my discharge.  When I was stationed at Camp Lejune, my wife left me and took my son.  I received a phone call from her shortly after stating that she was pregnant with another man’s child.  I was under a lot of duress, and my request for leave was denied.  I made a bad decision at the time that I regret to this day.  I wish I could turn the clock back to do it all over again, but the correct way.  I am truly sorry for the actions that I took.  I have to live with those every day.

I am currently a Plant Managed for a polyurethane company.  Since my discharge, I have enrolled back into school, and have finished m degree.  I have also remarried and plan to start a family with my new wife.  Hopefully you can see the concern I was in at the time, and hopefully you can find it in your hearts to grant me a General Discharge.  Thank you for you time in reviewing my case.”

Documentation

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

Applicant’s DD Form 214
Job/character reference, dated February 12, 2002
Job/character reference, dated July 1, 2002
Shining Star certificate in recognition of five years of service
Letter from Applicant, dated May 5, 2003

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		910221 - 920324	COG

Period of Service Under Review:

Date of Enlistment:  910325		Date of Discharge:  930922

Length of Service (years, months, days):

	Active:    02  05  28	Does not exclude lost time
	Inactive:  None

Age at Entry:  19			Years Contracted:  6

Education Level:  12			AFQT:  65

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (3)			Conduct:  4.4 (3)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, Letter of Appreciation

Days of Unauthorized Absence:  103

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:

930201:	Applicant to unauthorized absence 0731, 930201.

930227:	Applicant from unauthorized absence 930227 (26 days).

930405:	Applicant to unauthorized absence 0730, 930405.

930505:	Applicant declared a deserter having been an unauthorized absentee since 0730, 930405.

930622:	Applicant apprehended by civil authorities and returned to military control.  Placed in pre-trial confinement.

930811:	Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 86:  Unauthorized absence from 930405 to 930622 (77 days/apprehended).

930825:	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 930405 to 930622 (77 days/apprehended).

930901:	SJA review determined the case sufficient in law and fact.

930910:	Applicant released from confinement.

930910:	GCMCA [Commanding General, 2d Force Service Support Group] 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 19930922 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 19930825, 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 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.

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