ex-PVT, USMC
MD06-01104

Current Discharge and Applicant’s Request:

Application Received:  				20060815
Narrative Reason for Separation:	CONDUCT TRIABLE BY COURT-MARTIAL (REQUEST FOR DISCHARGE FOR GOOD OF THE SERVICE)
Character of Service:				
Discharge Authority:				MARCORSEPMAN 6419
Last Duty Assignment/Command at Discharge:	SUBUNIT 1 2D MEB 4TH MARDIV MCB CAMLEJ NC

Applicant’s Request:
	Narrative Reason change to: 		UNSATISFACTORY PARTICIPATION IN THE READY RESERVE
	Characterization change to:		
	Review Requested:			
Representation:  					

Decision: 

Date of Decision:					20070706
Location of Board:				Washington D.C.
Complete Service Record:				YES
Complete Medical Record:			YES
Complete Discharge Package:			YES
Regarding propriety, the Board found the discharge:	
Regarding equity, the Board found the discharge:	EQUITABLE

By a vote of  the Characterization shall  
By a vote of  the Narrative Reason shall remain CONDUCT TRIABLE BY COURT-MARTIAL (REQUEST FOR                                                                                                                                                                     DISCHARGE FOR THE GOOD OF THE SERVICE)

Applicant’s Issues, as summarized by the Board:
1.  Characterization of service is inequitable.
2.  Narrative Reason is inequitable.
3.  Post service.

Summary of Service:

Prior Service:
Inactive: NONE
Active:   		19900102 – 19900705 COMPLETION OF REQUIRED ACTIVE SERVICE
Period of Service Under Review:
Date of Enlistment:  				19871024
Years Contracted:  				;        
Date of Discharge:				19910919
Length of Service:
	Active:					00  Yrs  10  Mos  27  Days
	Inactive:					00  Yrs  07  Mos  03  Days
Time Lost During This Period:			156
Days Unauthorized Absence:			156
Days Confinement:				NONE     

Education Level:  				
Age at this Enlistment:  				
AFQT:  						95
MOS:						0311
Highest Rate/Rank:				LCPL

Performance Evaluation Averages (number of marks):
Proficiency:					3.8 (5)
Conduct:					3.8 (5)

Awards and Decorations (as listed on the DD Form 214):
NATIONAL DEFENSE SERVICE MEDAL, RIFLE SHARPSHOOTER BADGE

Service Record Entries Related to Characterization of Service or Narrative Reason for Separation

19891023:	Enlistment contract into the USMCR documents acknowledgement of the requirement to participate in 48 scheduled drills and not less than 14 days of annual training per year for 6 years upon completion of initial active duty training.

19900102:	Applicant reported for initial tour of active duty for training.

19900508:	Applicant to unauthorized absence.

19900510:	Applicant from unauthorized absence (2 days).

19900514:	NJP for violation(s) of UCMJ:
	Article 86:  Unauthorized absence from 0400, 19900508 to 1900, 19900510.
	Award:  Forfeiture of $189.00 for 1 month, restriction and extra duty for 14 days.
	Not appealed.

19900705:	Applicant released from initial tour of active duty for training.  Completed required active service (USMCR) IADT.

19900910:	Commanding Officer Letter of Unsatisfactory Participation mailed to Applicant.

19900910:	Commanding Officer Letter of Intent of administrative reduction mailed to the Applicant.     

19901008:	Commanding Officer Letter of Unsatisfactory Participation mailed to Applicant.

19901008:	Commanding Officer Letter of Intent of administrative reduction mailed to the Applicant.   

19901112:	Commanding Officer Letter of Unsatisfactory Participation mailed to Applicant.

19901112:	Commanding Officer Letter of Intent of administrative reduction mailed to the Applicant.   

19901118:	Applicant recalled to active duty via USMCR activation msg.

19901130:	Applicant to unauthorized absence 0600.

19910503:	Report of Return of Deserter.  Applicant surrendered at U.S. Marine Corps Reserve Center Johnson City, TN.  Applicant to proceed to Marine Corps Base, Camp Lejeune, NC.

19910503:	Straggler orders issued to Applicant to report to Camp Lejuene, NC.  Orders executed 19910504. 

19910828:	Marine Corps Defense Counsel to CG, 4th MarDiv, requesting Separation in Lieu of Trial by Court-Martial.  
	
19910829:	Applicant’s letter requesting separation in lieu of trial by court-martial.  Acknowledges violations of Articles 85 and 87, probable discharge as being under other than honorable conditions, and that his offenses, if tried at court-martial, could result in a punitive discharge.   

19910830:	Trial Counsel letter to Staff Judge Advocate, 4th MarDiv, recommending that Separation in Lieu of Trial by Court-Martial be approved.     

Elements of Discharge:  [REQUESTED BY MEMBER]

Discharge Process:
Date Member Requested Separation:			19910829
Member Requested Separation Due To:			
Characterization Requested:				
member Recognized Least Favorable:			
Recommendation of Commanding Officer (date):		NOT FOUND IN RECORD
SJA review (date):					  (19910911)
Discharge directed by (date):	COMMANDING GENERAL, 4TH MARINE DIVISION (REIN) 19910912
Narrative reason directed:					
Characterization directed:					
Date Applicant discharged:				19910919

Additional Information Considered by Board

Type of documentation submitted by the Applicant and considered by the Board
       
       	Document Type					#Pages
       Related to Period of Service Under Review:
	Service/Medical Record:				8
	Other Period of Service:				0
       Related to Post-Service Period:
	Community Service:				0
	Education:					2
	Employment:					10
	Health/Medical:					0
	Character Statements:				2
	Criminal Records Checks:				0
	Additional Statements from Applicant:		9
        Other Documentation (Describe Below)			0

        Total Number of Pages:				31

Applicant’s Issues, as summarized by the Board:
1.  Characterization of service is inequitable.
2.  Narrative Reason is inequitable.
3.  Post service.

Decisional Issues:
The Board accepted Issues 1 – 3 for consideration.

Issue 1 (Equity).  When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  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 conduct during the current period of service, which forms the primary basis for determining the character of his service was marred by consistent, intentional absences from his reserve unit, one nonjudicial punishment (NJP) for violations of the Uniform Code of Military Justice (UCMJ) Articles 86 and pending violations of Articles 85 and 87.  Violation of UCMJ Article 85, Desertion and Article 87, Missing a movement are considered  serious offenses for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial.  An upgrade to honorable would be inappropriate.  Relief denied. 

Issue 2 (Equity).  Marines may be separated upon their request in lieu of trial by special or general courts-martial if charges have been preferred with respect to an offense for which a punitive discharge is authorized and it has been determined that the Marine is unqualified for future military service.  The Applicant stated that he no longer wanted to be a Marine and took action to that end.  The Applicant, after consultation with Defense Councel, willfully signed the request.  A change of Narrative  Reason would be inappropriate.  Relief denied. 

Issue 3 (Equity).  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered.  The Applicant provided two character references, a document concerning education, and evidence of a work history.  The Applicant's efforts need to be more encompassing than those provided.  For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities.  The Board determined that the documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of discharge.  Relief denied. 
  
In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Medical Record Entries, Elements of Discharge and evidence submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable.

Minority Opinion

None

Pertinent Regulation/Law

A.  The Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 27 Jun 1989 until 17 Aug 1995, Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs,  Part V, Para 502, Propriety  and  Para 503, Equity.

C.  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 85, Desertion and Article 87, Missing movement.  

ADDENDUM:  Information for the Applicant

Complaint Procedures:  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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 1332.28 and other Decisional Documents by going online at “http://Boards.law.af.mil”.

Additional Reviews:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the 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.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  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.

Employment/ Educational Opportunities:  The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  

Reenlistment/ RE-code:  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.

Medical Conditions and Misconduct:  DoD disability regulations do not preclude a disciplinary separation.  Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons.  Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record.  Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or “PTSD.”  Only the Board for Correction of Naval Records can grant this type of narrative reason change.  

Automatic Upgrades - 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 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.  Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  

Issues Concerning Bad-Conduct Discharges (BCD) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief.  With respect to a discharge adjudged by a court-martial, the action of the NDRB is restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  

Board Membership:  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