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

  ex-Pvt, USMC
Docket No. MD03-01380

Applicant’s Request

The application for discharge review was received on 20030813.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a personal appearance hearing discharge review before the Board in the Washington National Capital Region or before traveling panel closest to Marietta, OH.  The Applicant listed the American Legion as his representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Board first conducts a documentary record review prior to any personal appearance hearing, and also advised that the Board does not travel, all hearings are held in the Washington, D.C. area.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040526.  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/MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.6.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1.  Although advised of rights he did not take advantage of Counsel do to youth and immaturity at the time.  He had no one to advise him as to future consequences.

2.  Through the Service Officer of Post 64, American Legion this individual requested, through SF 180, info re: DD214 and medical records.  214 received with notation; “Reply concerning medical records will be a matter of supplemental correspondence”  This information has never been received” 

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

3.  “Equity Issue:  Based on our review of evidentiary record and on behalf of this former member, we request that the Board consider 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:

Applicant’s DD Form 214
Applicant’s letter to senator
Request for medical records
Letter from Applicant’s mother
Letter from E_ T_, D.O.
Psychiatric exam (5 pp.) from Washington County Community Mental Health Services
Ohio National Guard acceptance letter
LES
Honorable Discharge certificate from Ohio National Guard with record of service (2 pp.)
College grade report
High School transcript
Diagnostic assessment and Mental Status Exam (7 pp.) from Washington County Community Mental Health Services
22 pages from Washington County Community Mental Health Services records

PART II - SUMMARY OF SERVICE

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

	Active:    None
	Inactive: USARNG		000627 – 001128	HON
   USMCR(J)		001129 - 010310	COG

Period of Service Under Review:

Date of Enlistment:  010311		Date of Discharge:  011205

Length of Service (years, months, days):

	Active:    00  08  25
	Inactive:  None

Age at Entry:  19			Years Contracted:  5

Education Level:  12			AFQT:  69

Highest Rank:  Pvt

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.5 (2)			Conduct:  3.3 (2)

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  83

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.6.

Chronological Listing of Significant Service Events:

010619:	Counseled for deficiencies in performance and conduct.  [UA.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

010802: 	Counseled for deficiencies in performance and conduct.  [Malingering.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

010920:	Summary Court-Martial.
Charge I: violation of UCMJ, Article 86 (2 specs):  
Specification 1: UA from 0700, 010417 to 1700, 010419.
Specification 2: UA from 2045, 010505 to 1645, 010604.
Charge II: violation of UCMJ, Article 107: Make false official statement on 010615.
Charge III: violation of UCMJ, Article 115: Faked back pain to avoid duty on 010615.
Finding: Guilty to all charges and specifications.
	Sentence:  Forfeiture of $695.00, confinement for 30 days, reduction to E-1.
		010927: CA action. Approved sentence with exception of reduction.

010629:	To UA.

010819:	From UA, to duty.

011026:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by your summary court-martial.

011026:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

011026:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  

PARTIAL DISCHARGE PACKAGE

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20011205 under other than honorable conditions for misconduct due to the commission of a serious offense (A and B).  In the absence of a discharge package, the Board presumed regularity in the conduct of governmental affairs (C) and, after a thorough review of the records, supporting documents, facts, and circumstances unique to this case, 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 award of a summary court-martial and an extended period of unauthorized absence.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service.  The evidence of record and documentation provided for review 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.  Administrative separation for misconduct takes precedence over a possible discharge for other reasons, such as for a medical condition.  Relief denied.

Issue 3.  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 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 31 January 1997 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; Article 107, false official statement; and Article 115, malingering.

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