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Docket No. MD03-00495

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

 ex-LCpl, USMC
Docket No. MD03-00495

Applicant’s Request

The application for discharge review was received on 20030203.  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 20040303.  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/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.  “To:  To whom it may concern

From: R_ L_ Jr. (Applicant)

Ref:  Discharge Upgrade

At the time charges were brought against me, I was recovering from a Traumatic Brain Injury(TBI), caused by a motor-vehicle accident that I was not responsible for.  I’ve suffered, and still suffer from, memory loss and confusion, regarding certain events in my past.  I understood the charges, but I did not understand how, and why, I was being prosecuted.

When I was hospitalized at the Palo-Alto VA Hospital, I was asked to be a witness in a case I admitted that I could not remember clearly.  My presence as a witness was then dismissed due to conflict of interest.  I did not have legal representation to advise me of my legal rights at that time.  It was not explained to me what the conflict of interest was.

My mother, on several occasions, tried to obtain a humanitarian transfer, to a base closer to home -(to be closer to my family and friends, and to help expedite my recovery, at the doctor’s recommendation).  No further explanation was given after I was placed onto legal hold.  To this day, I still can’t understand how one minute I’m asked to be a witness, and the next to be charged.  The attorneys assigned to my case, only explained that I had a 50/50 chance.  I don’t feel that all the information was explained to me enough, so that I may assist in my own defense.  At the time I was charged, all I wanted was to be home -(it had been over 8 months since my accident, and I was pending another operation).  I was being told, that it would’ve taken 3 to 6 months -(due to holidays), to have my hearing scheduled.  I then was being rushed, and pressured, to sign a “separations in lieu of trial” form.

Each day that goes by, my memory gets clearer, and stronger, and I feel I was wrongly accused.  I’ve never failed a urinalysis, and I don’t remember getting into any trouble.  On the contrary, I was attending college, off base (recommended by my supervisor).  Before my accident, I would speak with home at least twice a week.  My mother told me, that a week before my accident, I had told her that certain people I knew were trying to pin something on me, but I would set the record straight once I spoke with an attorney.  Then, I get into a car accident.

Today and each day that goes by, my memory has improved.  As my memory improves, my recollection of events have now convinced me to come forth with information that I feel, should be brought forth to clear my name.  Therefore, I am requesting that my case be opened for review.

Respectful Regards,
R_ L_ Jr. (Applicant)”

Documentation

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

Applicant’s DD Form 214 (2)
Letter from Applicant, dated May 13, 2003
Letter from Applicant’s mother, dated June 22, 2001
Letter from Applicant’s mother to General W_, undated
Letter from Applicant’s doctor, dated May 24, 2001
Letter from Applicant’s doctor, dated February 20, 2002
Letter from Applicant’s doctor, dated May 13, 2002
Letter from Department of Veterans Affairs, undated
Progress note, dated September 28, 2001 (2 pages)
Naval Hospital 29 Palms Emergency Department, discharge instructions
Police record check, dated May 1, 2003
Character reference, dated April 13, 2003
Character reference, dated April 16, 2003
Letter from Applicant, dated March 31, 2003
Character reference, dated May 5, 2003
Department of Veterans Affairs, discharge instructions
Letter from Applicant’s mother, undated
Three pages from Applicant’s service record

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		990706 - 990720	COG

Period of Service Under Review:

Date of Enlistment:  990721		Date of Discharge:  020517

Length of Service (years, months, days):

	Active:   02  09  27
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  70

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  NMF*			Conduct:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  None

*No Marks Found in the service record

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:

000504:	NJP for violation of UCMJ, Article 92:
Specification: Fail to obey MCO 1020.34F by wearing two earrings at 2306, 000430 at ACo, HqBn, MCAGCC.
Awarded forfeiture of $263.00 per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

010321:	Counseled for deficiencies in performance and conduct.  [Unauthorized absence on 010320.  SNM was 3 hours unauthorized absence from appointed place of duty.  You have been informally counseled on three previous occasions during the past 60 days.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010411:	Applicant involved in motor vehicle accident with epidural hematome, brain injury resulting in coma for 2 ½ weeks.

011030:	Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ), Article 81: Conspire with Private B_ L_ C_ and Corporal R_ E_ H_ to commit an offense under the Uniform Code of Military Justice, to wit: wrongful distribution of a controlled substance, and in order to effect the object of the conspiracy, Corporal H_ accepted $50.00 cash from Private C_, Corporal H_ arranged with an unknown source to obtain methamphetamine, Corporal H_ arranged to meet with Private C_ at Lance Corporal L_’s (Applicant’s) barracks room, Corporal H_ and Lance Corporal L_ (Applicant) divided the methamphetamine and repackaged Private C_’s share, and Lance Corporal L_ (Applicant) gave the package of methamphetamine to Private C_.  Violation of UCMJ, Article 112A (2 specs): (1) Wrongfully distribute methamphetamine on 010212, (2) Wrongfully use methamphetamine on 010212.

011119:	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 than honorable conditions.  The Applicant admitted guilt to the following violation of the UCMJ, Article 81: Conspire with Private B_ L_ C_ and Corporal R_ E_ H_ to commit an offense under the Uniform Code of Military Justice, to wit: wrongful distribution of a controlled substance, and in order to effect the object of the conspiracy, Corporal H_ accepted $50.00 cash from Private C_, Corporal H_ arranged with an unknown source to obtain methamphetamine, Corporal H_ arranged to meet with Private C_ at Lance Corporal L_’s (Applicant’s) barracks room, Corporal H_ and Lance Corporal L_ (Applicant) divided the methamphetamine and repackaged Private C_’s share, and Lance Corporal L_ (Applicant) gave the package of methamphetamine to Private C_.

011206:	GCMCA [Commanding General, Marine Air Ground Task Force Training, Twentynine Palms, CA] 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 20020517 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 20011119, the 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 than honorable conditions.  The Applicant admitted guilt to conspiring to distribute methamphetamine.
The Applicant’s medical condition does not mitigate his misconduct.  The Board found no indication in the record to support his assertion that he was improperly pressured to request separation in lieu of trial.  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 NDRB.  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.

The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity is evident during the Applicant’s enlistment.  Additionally, 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 the service.  Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his 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 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 86, unauthorized absence for more than 30 days.

C.  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.  

D.  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.

E.  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

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
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