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

  ex-Pvt, USMC
Docket No. MD03-01213

Applicant’s Request

The application for discharge review was received on 20030709.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  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 20040423.  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.  “I have been separated from the Marine Corps for 11yrs. and I am requesting an upgrade of my discharge from an OTH to an honorable.  I have waited beyond the 3 year time limit and this has been affecting me for the past 10yrs. now.  I just want the review board to know that I joined the Corps with intentions to fight and die, if need be, but I was young and immature and screwed up some.  This OTH has been eating at the back of my mind now for the past 11 yrs. now.

I appreciate your time and consideration on this review.”

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:    None
	Inactive: USMCR(J)		890331 - 890522	COG

Period of Service Under Review:

Date of Enlistment:  890523		Date of Discharge:  920131

Length of Service (years, months, days):

	Active:    02  08  09
	Inactive:  None

Age at Entry:  18			Years Contracted:  5

Education Level:  12			AFQT:  70

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.9 (8)			Conduct:  3.8 (8)

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, SASM(w/2*), LoC

Days of Unauthorized Absence:  4

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:

900914:	NJP for violation of UCMJ, Article 86: Failed to go to duty section muster;                     violation of UCMJ, Article 90: Disobeyed LtCol S_’s order not to leave the island; violation of UCMJ, Article 92: Disobeyed order to report to remedial PT.
Awarded forfeiture of $405.00 per month for 2 months, restriction and extra duties for 45 days, reduction to PFC.  Not appealed.

910718:	NJP for violation of UCMJ, Article 86: UA from 0645-0830, 910603; violation of UCMJ, Article 92: Disobeyed order to provide recall number while on leave.
Awarded forfeiture of $422.00 per month for 2 months, reduction to Pvt (suspended for 6 months).  Not appealed.

910805:	Counseled for deficiencies in performance and conduct.  [Insufficient funds.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

910809:	Counseled for deficiencies in performance and conduct.  [No attempt to prepare BEQ room for inspection.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

910812:	Counseled for deficiencies in performance and conduct.  [Sleeping on post, UA from beach police.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

910814:	Vacate suspended reduction from NJP on 910718.

911119:	Counseled for deficiencies in performance and conduct.  [Failed PFT.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

911213:	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 (5 specs): Failed to go to place of duty at 1500, 910807,  0800, 910826, 0700, 911018, UA from 0800, 910828 to 0800, 910830, and UA from 0730, 911201 to 0120, 911203.  Violation of UCMJ, Article 134 (3 specs): Utter worthless checks to MWR for total amount of $161.00.

911220:	Counseled for deficiencies in performance and conduct.  [Assigned Pro 2.0 and Con 1.0 due to substandard performance.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920107:	SJA review determined the case sufficient in law and fact.

920114:	GCMCA [CG, 1st MEB] 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 19920131 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 19911213, 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.  In addition the Applicant received numerous negative page 11 counseling entries and was awarded NJP on two occasions.  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, to enhance employment opportunities, or for 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; Article 90, disobedience to a commissioned officer; Article 92, disobey a lawful order; and Article 134, insufficient funds.

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