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

 ex-PVT, USMC
Docket No. MD05-00555

Applicant’s Request

The application for discharge review was received on 20050208.  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 discharge 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 20050519.  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/VOL DIS (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. ”I was given a OTH on the ground that I was UA.  The times that I was considered UA I was attached to the Marine Reserves at Vienna Air Base.  I was in an auto accident the day before I was to report for SOI.  I spent 10 days in Metro Health Center for a shattered hip socket.  This resulted in a steel plate an six screws being put in my leg when I was take to SOI at Camp LeJune.  I was told they had no knowledge of this.  But I drew pay while at the Air Base.  My reason for wanting the change is to aid my father-in-law in a VA loan for a house.  His disability pay is not enough but with my OTH they will not allow my income on his application.  Thank you.”

Documentation

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

None were submitted by Applicant

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		930119 - 930216	COG

Period of Service Under Review:

Date of Enlistment:  930217		Date of Discharge:  940830

Length of Service (years, months, days):

	Active:    00  10  00 (Does exclude lost time)
	Inactive:  None

Age at Entry:  22			Years Contracted:  4 

Education Level:  12			AFQT:  50

Highest Rank:  PVT			MOS:  0300

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.1 (2)		Conduct:  4.1 (2)

Military Decorations:  None

Unit/Campaign/Service Awards:  RMB, NDSM

Days of Unauthorized Absence:  235

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

UNDER OTHER THAN HONORABLE CONDITIONS/VOL DIS (IN LIEU OF TRIAL BY COURT MARTIAL), authority:  MARCORSEPMAN Par. 6419.

Chronological Listing of Significant Service Events:

930622:	Joined Inspector-Instructor Staff, NMCRC, Bldg 540, Youngstown Air Reserve Station, 3893 King Graves Road, Vienna, OH pending recovery from an automobile accident which occurred on 930621.

930901:	Detached from Inspector-Instructor Staff, NMCRC, Bldg 540, Youngstown Air Reserve Station, 3893 King Graves Road, Vienna, OH.  Assigned a flight authorization and flight number to report to Commanding General, Marine Corps Base, Camp Lejeune by 2400, 930904.   

930905:	UA since 0001, 930905 when failed to report in compliance with order to report no later than 2400, 930904.

940429:	Declared a deserter.

940523:	Report of Return of Deserter.  Applicant apprehended by civil authorities 940520 (1730) at Youngstown, OH.  Returned to military control 940521 Retained.  The mark of desertion under 940429 for the absence commencing 940428 removed.

940726:	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 honorable conditions.  The Applicant admitted guilt to the following violations of the UCMJ, Article 86:Unauthorized absence from 930905 until apprehended on or about 940428 (235days).

940816:	SJA review determined the case sufficient in law and fact.

940825:	GCMCA, Commander, Marine Corps Base, Camp Lejeune, 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 19940830 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 19940726, the Applicant 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 was guilty of the offenses (violation of UCMJ Art 86, UA for 235 days).  He further certified a complete understanding of the negative consequences of his actions and that characterization of service could 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 Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time.  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 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		Secretary of the Navy Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023

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