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USMC | DRB | 1999_Marine | MD99-00679
Original file (MD99-00679.rtf) Auto-classification: Denied


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

ex-LCPL, USMC
Docket No. MD99-00679

Applicant’s Request
The application for discharge review, received 990419, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The applicant requested 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 000110. 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 faithfully served in the Marine Corps from June 1979 to March 1988. I was court martialed in November 1988. After my Court martial realizing that my career as a Marine was over, I turned to drugs and alcohol. Not knowing who or where to turn to I sought this as a means of escape. Not realizing until afterwords that I had an alcohol and drug problem.
2.       Since that time I have completed an alcohol and drug rehabilitation program and have been a contributing member of society. Had I known this and had been offered help while still on active duty, I would have gladly accepted it. But, neither did I know or was it offered.
3.       It is requested that the review be based on my past military record and an upgrade or change be granted. Thank you.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              831209 – 871208  HON
 Active: USMC              790627 - 831208  HON
          Inactive: USMCR(J)                781205 - 790626  COG

 Period of Service Under Review :
Date of Enlistment: 871209               Date of Discharge: 890203

 Length of Service (years, months, days):

         Active: 01 00 14
         Inactive: None

 Age at Entry: 17                          Years Contracted: 2

 Education Level: 11                        AFQT: 41

 Highest Rank: SGT

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: N/A                  Conduct: N/A

 Military Decorations: None

 Unit/Campaign/Service Awards: Rifle Expert Badge (4 th ), SSDR (2), GCM (1), MM, NUC

 Days of Unauthorized Absence: 101

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 :

880331:  Applicant declared a deserter at 0630 880330 having been an unauthorized absentee since 0630, 880229 from RCTG School HqSvcBn, MCRD, San Diego, Calif.

880622:  Applicant returned to military control 1500, 880608.

881101:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 86.
         Specification: Did on about 880229 without authority, absent himself from his organization until on or about 880608.
         Add Charge I: violation of the UCMJ, Article 123a.
         Specification 1: Did on or abt 880608 write a bad check - $20.
         Specification 2: Did on or abt 880622 write a bad check - $20.
         Specification 3: Did on or abt 880630 write a bad check - $130.
         Charge II: violation of the UCMJ, Article 123a.
         Specification 1: Did on or abt 880609 write a bad check - $40.
         Specification 2: Did on or abt 880610 write a bad check - $85.
         Specification 3: Did on or abt 880613 write a bad check - $ 35.
         Specification 4: Did on or abt 880616 write a bad check - $40.
         Specification 5: Did on or abt 880627 write a bad check - $75.
         Finding: to Charge I and the specification thereunder - Guilty,
 Add Charge I and the specifications thereunder – Guilty,
Charge II and the specifications thereunder – Guilty
Sentence: reduced to E-3.
          CA action 881214: Sentence approved and ordered executed.       

890110:  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 112a: 2 specifications: wrongfully use of cocaine.

890123:  SJA review determined the case sufficient in law and fact.

890124:  GCMCA [CG, MCRD] 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 890203 under conditions other than honorable 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).

In the applicant’s issue of post service clemency, the Board found nothing to substantiate his claim. Relief denied

 The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (B, Part IV). 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, an error or injustice 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 no documentation of his post-service. The applicant should have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs in order for consideration for clemency based on post-service conduct. At this time the applicant has not provided sufficient documentation of good character and conduct. Therefore no relief will be granted. He is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. 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. 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 [ e.g., 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 obtain a copy of DoD Directive 1332.28 by writing to:
                  DA Military Review Boards Agency
                  Management Information and Support Directorate
                  Armed Forces Reading Room
                  Washington, D.C. 20310-1809

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
                  Washington Navy Yard
                  720 Kennon St SE Rm 309
                  Washington, D.C. 20374-5023     


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