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

 ex-PFC, USMC
Docket No. MD00-00014

Applicant’s Request

The application for discharge review, received 990930, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested a personal appearance hearing discharge review before a traveling panel closest to Columbus, OH.  The applicant did not list any representative on the DD Form 293.  In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel outside the Washington, D.C. area and applicant was notified that a hearing would be scheduled for July 2000 or later. The applicant failed to respond by the deadline date to a letter requiring the applicant to notify the Naval Discharge Review Board of intention to be present for the requested personal appearance hearing.  Therefore, a documentary discharge review was conducted.  Applicant's failure to response to the scheduling notice makes him ineligible for further review by this Board unless the applicant can demonstrate the failure to respond was due to circumstances beyond the applicant's control.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000720.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: UNDER CONDITIONS OTHER THAN HONORABLE/Separation in lieu of trial by court-martial, authority: MARCORSEPMAN Par. 6419.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  I B_____ T_____ was a good conduct marine and got caught up in a scandal, I was pulled over on base on Thursday night which was known around on base as black night at the E-6 Club the MP's beat me black & blue took me to the police station took off all clothes.  Simply because I had a white women in my car with me.  My battalion commander allowed me to go up for a special court martial, as soon as I was released I went to a military attorney and was told that there was no such thing as police brutality.  I went through court marshal 5 of the 6 men were administratively discharged because they had done this numerous times in the past and the one naval officer made the charges stick against me. I didn't receive hard punishment but I was sent back to the same battalion CMDR who allowed me to go to a special court marshal that I never should have been in.  I went to seek legal assistance and a military attorney advised me to go UA and turn myself I after 90 days and I would receive a gen under honorable conditions discharge.  I was very young and didn't know much about anything.  Please look into spec court marshal and the evidence will show that I was used just to get rid of a lot of bad MP's .
Prior to the documentary discharge review, the applicant introduced no issues as block 8 on the DD Form 293 is blank. 
.

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		830527 - 831129	COG

Period of Service Under Review:

Date of Enlistment:  831130		Date of Discharge:  861103

Length of Service (years, months, days):

	Active:  02  11  04
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  42

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.1 (10)		Conduct:  3.8 (10)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Sharpshooter Badge, SSDR 

Days of Unauthorized Absence:  64 

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

UNDER CONDITIONS OTHER THAN HONORABLE /Separation in lieu of trial by court-martial, authority:  MARCORSEPMAN Par. 6419.

Chronological Listing of Significant Service Events:

860224:	Counseled concerning 13 points accumulated on driving license and suspension of base driving privileges for six (6) months, effective from 860224 to 860823.

851112:	NJP for violation of Article 107, UCMJ: did at 0920 on 851022, make a false official statement to MSgt B__; violation of Article 92, UCMJ: was derelict in the performance of his duties at 0700, 851022.  Sentence: forfeiture of $150 per month for 2 months, restriction for 30 days.  Forfeiture suspended for 6 months unless looner vacated.  Not appealed.

860522:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 90: Disobeyed a Commissioned Officer's lawful command; Charge II: violation of UCMJ, Article 91: Disrespectful in language toward an Armed Forces Policeman; Charge III: violation of the UCMJ, Article 92: Disobeying base order by driving on base while privilege suspended; Charge IV: violation of the UCMJ, Article 95: Resisting apprehension; Charge V: violation of the UCMJ, Article 117: Wrongful use of provoking words, Charge VI: violation of the UCMJ, Article 128: (3 Specs), Assaulting an Armed Forces Policeman; Charge VII: violation of the UCMJ, Article 134: Wrongful communication of a threat.
	Findings:  to Charge I and specification 1 thereunder, guilty.  To Charge II and specification thereunder, not guilty.  To Charge III and specification thereunder, not guilty.  To Charge IV and specification thereunder, guilty except for the words "and throwing punches at"; of the excepted words, not guilty; of the specification as excepted, guilty. To Charge V and specification thereunder, not guilty.  To Charge VI and specification 1 thereunder, guilty, specification 2 and 3 thereunder, not guilty.  To Charge VII and specification 1 thereunder, not guilty, specification 2 thereunder guilty. 
	Sentence:  Fine of $300.00 pay per month for 3 months, confinement at hard labor for 75 days, reduction to E-2.
	CA 860616: Sentence approved and ordered executed.

860612:	Applicant received traffic violation for driving aboard MCDEC with a suspended license. 

860829:	Applicant declared a deserter on 860829 having been an unauthorized absentee since 1200, 860729 from WTBn MCDEC QUANTICO, VA.

861005:	Applicant apprehended by military authorities on 861005 (0810) at WTBn, MCDEC QUANTICO, CA.

861006:	Letter of Counseling for unauthorized absence.

861014:	Letter of Counseling.
 
861021:	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: Without authority, absent himself from his unit, to wit: Weapons Training Battalion, Marine Corps Development and Education Command, located at Quantico, VA from 860729 until 861004 [64days].

861022:	Commanding Officer, Weapon Training Battalion, Marine Corps Development and Education Command recommended discharge in lieu of trial by court-martial under other than honorable conditions.

861028:	SJA review determined the case sufficient in law and fact.

861029:	GCMCA [Commanding General, Marine Corps Development and Education Command] 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 conditions other than honorable by reason of conduct triable by courts-martial.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 861103 under conditions other than honorable in lieu of trial by court-martial (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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).

In the applicant’s issue, the applicant provided no documentation to verify his allegations.  The Board found that the applicant went UA for 64 days, requested a discharge in lieu of a court-martial, and pled guilty to the UA.  The applicant was properly discharged for his UA.  Relief denied.

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 P1900.16C), Change 2, effective 15 May 84 until 26 Jun 89.

B.  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.  

C.  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.

D.  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