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

 ex-PVT, USMC
Docket No. MD03-01382

Applicant’s Request

The application for discharge review was received on 20030812.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing review before the Board in the Washington National Capital Region.  The Applicant did not list any 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 20040608.  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.  “To whom it may concern, my name is D_ R_ I enlisted it the Marines because I wanted to be the best and serve my country.  Growing up was a challenge for me.  I did not have much of a childhood my mother abused me everyday at one point my mother broke my hand and sat me on a stove.  People in school used to beat me up because I was poor, different, and stayed to myself.  My mother had a mental illness, we did have any food, when people or family come to give us food she would not take it.  My uncle used to sexually abuse me, the school I used to go to found out about what happened and a social worker came and took me from school and placed me in a foster home.  They treated me like dirt and trash.  The money that was given to me by the state to them was used for their own needs, not for me.  I went through abuse from them both physical and sexual.  People in school use to bully me.  At that point my grandparents used to visit me at the social service building.  They found out what was going on. And thats is when the State of Maryland allowed my grandparents to adopt me.  It was hard to make the transitions.  My grandparents treated me very good, since they were older they had to get used to having a child since their kids were all grown.  My grandfather was now my father figure since I didn’t have a father in my life.  My biological father never came around when I was little.  My grandfather was not my biological but he treated as if I was, my grandmother was my mother’s mother, for quite awhile I stayed to myself nonsocial somewhat of a recluse.  At that point I had to have therapy or see a psychologist.  I was told I suffer from depression, social anxiety, disorder, and asperser syndrome, I did not like to be around a lot of people so I isolated myself.  Asperser’s syndrome is a little bit of autism and obbessive compulsive disorder.  So people in society treated me so different it was hard to even go to school.  Everyday people beat me up for no reason, they said I was weird.  I could not concentrate in school.  So the state of Maryland gave me a tutor, from there they sent my to a group home for boys.  It was not a locked placed.  It was a place where others had similar problems I was there for 3 years.  I was rough in the beginning but I made it through.  My grandparents used get me on the weekends.  At my stay there my grandmother became sick she had cancer and it was getting worse.  Being at the group home I  learned a lot grew up.  So it was decided that my time was up so I was discharged and placed back in my grandparents care.  My grandmother was getting worse with her cancer.  My grandfather had to retire to take care of my grandmother.  The rent was getting hard to pay.  So they need to go to a senior citizen home quick.  I always told my grandparents I would make something of myself.  everyone in the family was military, army, navy, and airforce.  Their were no marines and I heard they were the best and the toughest branch,.   Alot of people said that I could not survive marine boot camp.  So I proved to them and myself they I can make it, just because I have a disability that does not mean I don’t have the will.  I told my grandmother my picture of me in my marine dress blue uniform will be on her wall.  So in May 8, 1995 I went to bootcamp I made it a few months later.  I did not tell her when I was coming home.  At this time she was in at a senior citizen home, when she saw me she was so proud of me she cried.  I promised I would take care of them.  After all they raised me for 15 years when they did not have to.  I went to the marine school of infantry.  I graduated I was then stationed at Marine Barracks DC.  People of the marines treated like dirt because I did not like to do things they did like, drink, clubs, women, etc, I was not worried with material things, they confusing cause problems so I get sent to the FMF BCO 1/8 2ND Mar DIV 3PLT.  When I checked in the placed me in the barrack in a room with another marine named Lcpl M_ he was a problem marine.  One morning during reveille our platoon Sgt came in the room to make sure we were getting up.  The Sgt was Sgt R_, I got up got dressed.  M_ on the other hand paid no mind to the Sgt the Sgt got mad and pulled M_ by the leg out of the rack to the floor LCpl M_ father was someone of importance in the Government, well one day M_ father called the 1sst, the 1stSgt asked M_ did he have any witnesses, so that is when my name got put in it.  The 1stSgt came to me and I told him I did not want to be part of this, because I was new to the command, so he started yelling and threatening me, he told me if I did tell what happened, I will be in trouble so he made write a statement and sign, and from that point the stuff had hit the fan.  Everyone in the unit thought I was taken up for M_, squad leaders had me do things that I was not supposed to do other Marines threatened me, during PT I had to run extra miles, I had watch or duty every weekend.  It started to get harder I ask to go home on one weekend to visit my grandparents I was told no.  I had no problems on marches or going out in the field.  I loved it.  One day another marine asked he could go home on leave for a couple of weeks because he was stressed out from the field, they let him go, and we go at the command at the same time, once again they placed me on duty with M_, when it was time I did my duty I did it, LCpl M_ said he would be right back to take a tour of the barrack he never returned, so they held me responsible, I went through the proper chain of command, I told the OOD M_ could not be found.  So I got in trouble.  From that point I requested mast. I never happened, I even asked to placed in another unit, I was told no I never wanted to leave the marines I love the corps, till this day, I still love them I have 4 marine corps tattoos that’s how much I loved them.  But I went UA to help my grandfather with my grandmother, then she died, so I returned to base.  And I was sent to the brig then discharged from the corps, in 2001 I went in the navy.  A recruiter in MEPS told me he could get me in with my RE-Code, I went to great lakes and took the S.E.A.L.S challenge and passed I wanted to be a Navy Seal.  Since I was grunt in the corps.  I love my country, the navy founded out about my discharge in the marines and was given entry level separation, the military is my only family.  My grandfather died in 2000, so that just leaves me, I have not seen my family since I was little.  Please I want to go back in the navy I still have my uniforms.  Please give me another chance.  I wanted to go to IRAQ with everyone else, I was younger then and nieve.  Now I worked on a lot of problems that I had in the past.  When I was in the navy I did not get in trouble.  I would like continue my career in the navy, I made mistakes is the past, and paid for them, I am still a citizen of the United States and will fight for my country if it means coming back home in a flag draped metal casket, I will not let you down.  I hope God puts it in your heart to give me a chance, I would like my discharge changed to Honorable and Re-enlistment Code to RE-1 so I can enlist back in the Navy.”

Documentation

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

Copy of DD Form 214
Copy of DD Form 214 (From Navy for Fraudulent Entry)

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		950420 - 950507	COG

Period of Service Under Review:

Date of Enlistment:  950508		Date of Discharge:  990805

Length of Service (years, months, days):

	Active:   04  02  28  (Does not exclude lost time)
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  34

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.0 (9)			Conduct:  2.2 (12)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, Rifle Marksman

Days of Unauthorized Absence:  796

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:

950403:	Counseled for deficiencies in performance and conduct.  [Frequent involvement with military authorities.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

951120:	NJP for violation of UCMJ, Article 86: Did on or about 0530, 951106 without authority absent himself from his unit, to wit: CoA, MarBks, WashDC and did remain so absent until on or about 2130, 951106.
Awarded forfeiture of $239.38 pay for 1 month (suspended for 6 months), restriction and extra duties for 14 days.  Not appealed.

960326:	Counseled for deficiencies in performance and conduct.  [Specifically, showing up 2 hours late after weekend liberty and displaying a negative attitude towards performing your daily duties.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

970311:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 86: Did on or about 960513, without authority, absent himself from his unit and did remain so absent until on or about 961220 (221 days).
	Findings:  to Charge I and specification thereunder, guilty.
	Sentence:  Forfeiture of $100.00 for 3 months, confinement for 90 days, reduction to E-1.
	CA 970311 Sentence approved and ordered executed except for 90 days which 45 days has been suspended for period of 6 months, at which time, unless sooner vacated, will be remitted without further action.

970721:	To UA.

971204:	IHCA at 0700, 971204 while in UA status.

980317:	To UA.

980417:	Declared a deserter.

990426:	IHCA at 1628, 990426 while in UA status.  Pending civil charges for second degree assault and failure to appear.

990708:	Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 86: 
	Unauthorized absence (UA) from 980317 to 990601 (441 days/A).
 
990712:	Applicant requested Separation in Lieu of Trial.

990727:	Commanding Officer, Headquarters and Support Battalion, Marine Corps Base, Camp Lejeune recommending not approving Separation in Lieu of Trial in the case of Applicant.
 
990728:	Trial Counsel recommended request for Separation in Lieu of Trial be granted.

990729:	SJA review determined the case sufficient in law and fact.

990802:	GCMCA [Commander, Marine Corps Base, Camp Lejeune, North Carolina] 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 19990805 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.  The Applicant was the subject of a special court-martial due to an extended period of unauthorized absence and later was in an unauthorized absence status for 135 additional days with no record of punishment or charges pending.  After his apprehension from 441 days of more unauthorized absence, the Applicant requested separation in lieu of trial by court-martial.  In his request, he acknowledged guilt to the charge referred against him and that his 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.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  

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 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