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

 ex-PVT, USMC
Docket No. MD04-01348

Applicant’s Request

The application for discharge review was received on 20040827.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  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 20041222.  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:

“I received an Other Than Honorable discharge from the United States Marine Corps  Because I was listed as a deserter. 
   I went UA in Sept of 1997 when my wife was diagnosed with terminal throat cancer and was placed in the hospital with little chance of recovery.  I decided to stay with her instead of reporting for duty.  I admit that does not make what I did right, nor does it give it an excuse, but I did what I thought was the right thing to do at the time.  I never was told about any hardship discharges, or any other options, my mind was strickly on taking care of my wife and being with her during her time of desperate need.  The doctors’ all said that she would not make it out of the hospital alive, but she proved them all wrong.
  I turned myself in to the Marine Corps after I knew she was getting better, which was August of 2003.  I was working for Wackenhut Security at that time and had been since Feb of 2003.  After receiving the OTH discharge, they would not let me return to work until the discharge gets upgraded to Honorable.  I know that what I did wrong, and deserve a lot less than I received, but I ask that my discharge gets upgraded therefore I can return to work with Wackenhut Security and continue to pursue my career in law enforcement.  I do not wish for any kind of benefits at all, just a word on a piece of  paper so I can back to work.  I have enclosed a letter from my previous employer stating my credibility, and also a letter that I received from them when I won the Award of Distinction.  While employed with them, I had received many awards from Wackenhut Security, as well as the place I was stationed at, Primus/Ford Financial, I also attended many extra training classes and received certificates for completion on all of them.  This is a job I would love to have back, as well as them wanting me back.  Even the people at Primus/Ford are looking for my return. So, I ask the Board that if they can see fitto upgrade my discharge.  Thank you for your time, and God bless.”

Documentation

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

Applicant’s DD Form 214
Letter from A_C.B_, dtd March 28, 2003
Letter of recommendation from C_S_, dtd December 5, 2003

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		970314	970324	COG

Period of Service Under Review:

Date of Enlistment:  970325		Date of Discharge:  031007

Length of Service (years, months, days):

	Active:    00  07  24
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  48

Highest Rank:  Pvt			MOS:  9900

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.1 (*)			Conduct:  4.2 (*)

Military Decorations:  None

Unit/Campaign/Service Awards:  RSB

Days of Unauthorized Absence:  2144

* Pro Con marks extracted from CO’s letter of  Recommendation for Administrative Separation.

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:

991001:	Applicant designated a deserter.

030826:	Applicant from UA, returned to military control.

030910:	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 his unauthorized absence from 11 October 1997 to 26 August 2003 resulting in the Applicant being declared a deserter.

030910:	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.

030911:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  The factual basis for this recommendation was the Applicant’s unauthorized absence from 11 October 1997 to 26 August 2003, a violation of Article 86, Uniform Code of Military Justice.

030923:	SJA review determined the case sufficient in law and fact.

031006:	GCMCA, Commanding General, Marine Corps Base, Camp Lejeune directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20031007 under other than honorable conditions for misconduct due to the commission of a serious offense (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).

The Applicant states that he went UA because of his wife’s illness.  The NDRB recognizes that serving in the U.S. Marine Corps  is challenging.  Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country.  It must be noted that most members of the Marine Corps serve honorably and therefore earn their honorable discharges.  In fairness to those members of the Marine Corps, commanders and separation authorities are tasked to ensure that undeserving Marines’ receive no higher characterization than is due.  The Applicant’s service was marred by 2144 days of unauthorized absence and he was declared a deserter.  The NDRB found that the Applicant's service was equitably characterized.  Relief denied.

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 on the propriety and equity of the discharge.  

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 letters of recommendation from his employer as documentation of his post-service.  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, in order for consideration for clemency based on post-service conduct.  At this time, the applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in his characterization of discharge.  Therefore, no relief will be granted.  

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 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 01 September 2001 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 85, desertion.

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