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

FOR OFFICIAL USE ONLY

 ex-Pvt, USMC
Docket No. MD05-01309

Applicant’s Request

The application for discharge review was received on 20050721.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable and the Narrative Reason for Separation be changed to “Change of RE Code to RE 1.”  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060403.  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 4-1 that the character of the discharge shall not change and unanimous that the reason for discharge shall not change.  The discharge shall remain Under Other Than Honorable Conditions by reason of separation in lieu of trial by court-martial.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“Issue 1 - I was young & immature, and didn’t understand the extent of my actions.

Issue 2 - I have served honorably and effectively since.

3. - I would not receive this Discharge if I were discharged today

4 - I received awards and decorations since.

5 - My record of AWOL/UA was only 1 incident and has not happened since.

6 - Personal problems impaired my ability to serve

7 - My service to my unit since shows that this incident is not likely to occur again.”

Applicant’s issues, as stated on an attached document/letter to the Board:

“To whom it may concern.  I am writing this letter to explain my actions while in the US Marine Corps.  I joined the Corps when I was seventeen years old.  I wanted to provide a future for my first love and son’s mother who at the time I was engaged to.  Needless to say we were both very young and we separated after I joined close to the beginning of my senior year.  The reason we separated was due to her being unfaithful.  I was devastated to the point where I quit going to class and was about to drop out.  Fortunately my recruiter pulled my head up out of the water and forced me to concentrate on graduating and moving on with my life.  I would see my son every day after school.  Finally I graduated and left my son for the first time since he was born.  While at boot camp, I began to write to my son and started receiving letters from his mother which came as a shock to me, since we did not have very much interaction after we split up.  In her letters she told me that she was looking forward to seeing me again and that we had a lot to talk about.  I was very excited, finally I could have everything back to the way it should be.  Graduation came, and imagine my surprise when I look over and there she is.  I began to think that finally everything was going to work out.  When we got home we began to talk of marriage again, of being a family.  The downfall was that she didn’t want to move.  The time came for me to head off to MCT.  We had a bad fight the night before I left and when I left she wasn’t there to see me go.  I was extremely depressed.  I didn’t understand how everything had gone so wrong again.  While at MCT we spoke over the phone and she told me how much Tristan and her needed me at home with them and how great everything would be if I would just come home.  I talked to my command and they left me go home for the weekend, but that wasn’t enough for her.  When I returned to MCT she told me to choose her and Tristan or the USMC.  That’s when I made the biggest mistake of my life.  I went AWOL.  I was a young 18 yr old kid who didn’t understand the gravity of my decision.  After a short period I began to understand that it wasn’t going to work out until I was finally out of the Corps and turned myself in and went back to North Carolina.  While there I was given the choice to stay in or be discharged.  Still hoping to work things out with my family, I opted for the OTH.  Looking back I had no idea of the effect that this type of discharge would have on my life.  I am now 27 yrs old and have been in the PA National Guard for over 5 yrs.  I have been deployed overseas where I earned an ARCOM, and two AAM’s.  I am now awaiting orders for promotion to E5.  I have grown and matured greatly since my bad decision almost ten years ago.  I am also married and have two beautiful girls.  I am applying for a AGR spot but cannot get one because of my RE code on my USMC DD 214.  I am requesting that it be change on the basis that I have served honorably for the past 5 yrs and have answered my country’s call to serve overseas in an hazardous situation.  I am truly sorry for my actions as a child, but I don’t believe that they should affect me as an adult.  I am a good soldier who loves my country.  I am just asking for the chance to prove that I am no longer the same person.

D_ C_
[signed] D_ C_ (Applicant)”

Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214
Applicant’s DD Form 214 from the ARMY/ARNG for service from 20030304-20040407
Character Reference ltr from R_ B. Z_, SFC, PAARNG, undtd, unsigned

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19960611 - 19970609	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19970610		Date of Discharge:  19980403

Length of Service (years, months, days):

Active:    00  04  23  (excludes lost time)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  91 days
	Confinement:		  60 days

Age at Entry:  19

Years Contracted:  4

Education Level:  12				AFQT:  52

Highest Rank:  Pvt				MOS:  9971

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.1 (2)				Conduct:  2.4 (3)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Rifle Marksman

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:

960611:	Pre-service waiver granted.

971014:	NJP for violation of UCMJ, Article 90: At 0700, 970929, willfully disobeyed a lawful order from Captain S_, to participate in the live fire exercise by refusing to train.
Violation of UCMJ, Article 91: At 0700, 970929, willfully disobeyed a lawful order from SSgt M_ and SSgt N_, to participate in the live fire exercise by refusing to train.
	Award:  Forfeiture of $450 per month for 2 months, restriction for 60 days.  Restriction suspended for 6 months.  Not appealed.

971014:	Counseling:  Advised of deficiencies in performance and conduct (Bn NJP held 971014 for violation of Articles 90 and 91 of the UCMJ: specifically; disobeying a lawful order from a superior commissioned officer and disobeying a lawful order from SNCO.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  Applicant chose not to make a statement.

971020:	Applicant discharged from Naval Hospital, Camp Lejeune, NC.  (Applicant admitted 971018)
	AXIS I: None
	AXIS II: Personality disorder NOS with immature features
	AXIS III: Patient complains of foot pain

971029:	Applicant to unauthorized absence at 2230 on 971029.

971128:	Applicant declared a deserter.

980129:	Applicant from unauthorized absence at 1630 on 980129 (91 days/surrendered).

980131:	Applicant found fit for confinement.  Applicant to confinement.

980212:	Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 86:  Specification: In that Private D_ C. C_(Applicant) Jr., U.S. Marine Corps, Headquarters and Support Battalion, Marine Corps Base, Camp Lejeune, North Carolina, did, on or about 29 October 1997, without authority, absent himself from his organization, to wit: School of Infantry, Marine Corps Base, Camp Lejeune, North Carolina located at Marine Corps Base, Camp Lejeune, North Carolina, and did remain so absent until on or about 29 January 1998.

980219:	Charges referred to special court-martial.

980227:	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 violation of the UCMJ, Article 86:  Specification: In that Private D_ C. C_(Applicant) Jr., U.S. Marine Corps, Headquarters and Support Battalion, Marine Corps Base, Camp Lejeune, North Carolina, did, on or about 29 October 1997, without authority, absent himself from his organization, to wit: School of Infantry, Marine Corps Base, Camp Lejeune, North Carolina located at Marine Corps Base, Camp Lejeune, North Carolina, and did remain so absent until on or about 29 January 1998.

980320:	SJA review determined the case sufficient in law and fact.

980327:	GCMCA, Commanding General, Marine Corps Base, Camp Lejeune, North Carolina directed the Applicant's discharge under other than honorable conditions in lieu of trial by court -martial.

980401:	Applicant from confinement.  [Date extracted from medical record.  CO’s letter of 19980318 indicated the Applicant was not in confinement at the time of the letter.]

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19980403 in lieu of trial by court-martial (A and B) with a service characterization of under other than honorable conditions.  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 (C and D).  

Issues 3, 5, 7.  When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as honorable.  An under other than honorable conditions discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record.  The Applicant’s service was marred by nonjudicial punishment proceedings for violations of Articles 90 and 91 of the UCMJ.  The Applicant also violated Article 86 of the UCMJ by a 91-day period of unauthorized absence.  The Applicant’s violations of Articles 86, 90 and 91 of the UCMJ are serious offenses.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

Issues 1, 6.  The Applicant contends that he was young and immature and that his personal problems impaired his ability to serve.  While he may feel that immaturity and personal problems were the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

Issues 2, 4.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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 subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  While the Board applauds the Applicant’s honorable service as a member of the Army National Guard, the Applicant’s efforts to demonstrate post-service conduct need to be more comprehensive.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided sufficient post-service documentation for the Board to consider.  Relief denied.

The Applicant requested a change of narrative reason for separation.  On 19980227, 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 offense for which he was charged and that he was guilty of the offense.  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.  Separation in lieu of trial is the reason the Applicant was discharged.  Since no other Narrative Reason for Separation more clearly describes why the Applicant was discharged, a change would be inappropriate.  Relief based on this issue is not warranted.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code.  Reenlistment policy of the Marine Corps is promulgated by the Commandant, United States Marine Corps, Code MMEA, 3280 Russell Road, Quantico, VA 22134.  Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment.  A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  

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 additional evidence related to this 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 31 August 2001.

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, Article 90, willfully disobey superior commissioned officer or Article 92, willfully disobey as noncommissioned officer.

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

D.  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