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USMC | DRB | 1999_Marine | MD99-00820
Original file (MD99-00820.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD99-00820

Applicant’s Request
The application for discharge review, received 990524, 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 000424. 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 OTHER THAN HONORABLE CONDITIONS/VOL DIS (IN LIEU OF TRIAL BY COURT MARTIAL), authority: MARCORSEPMAN Par. 6419.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues
1. I am asking the Board to up-grade my discharge. The records show that I served for over 25 months and my first 18 months of service there is no major incidents on file.

2. I am asking the Board to up-grade my discharge, The records show that I served faithfully in combat, in Granada and in Lebanon. Please consider this fact.

3. I am asking the Board to up-grade my discharge. The records show that my Battalion or Company didn’t try to counsil me on my drug use, that may have stemmed from being in combat. The records also show that there was no major incidents on file from the time I entered the Marines till I returned from Lebanon. Please consider these facts also.

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: None
         Inactive: USMCR(J)                820901 - 821130  COG

 Period of Service Under Review :
Date of Enlistment: 821201               Date of Discharge: 850123

 Length of Service (years, months, days):

         Active: 02 01 23
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 10                        AFQT: 49

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.9 (7)                       Conduct: 3.7 (7)

 Military Decorations: None

 Unit/Campaign/Service Awards: AFEM, CAR, MCEM, HSM, NUC, SSDR

 Days of Unauthorized Absence: 2

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

UNDER OTHER THAN HONORABLE CONDITIONS/VOL DIS (IN LIEU OF TRIAL BY COURT MARTIAL), authority: MARCORSEPMAN Par. 6419.

 Chronological Listing of Significant Service Events :

820831:  Applicant signed Statement of Understanding of Marine Corps Policy on Drug Abuse.
830415:  NJP for violation of UCMJ, Article 86:
 Specification: Unauthorized absence from 0600, 9Apr83 to 1630, 11Apr83 (3 days).
Awarded forfeiture of $150.00 per month for 1 month, restriction for 10 days, extra duties for 3 days. Not appealed.
840406:  NJP for violation of UCMJ, Article 92:
 Specification: Failure to obey lawful order on 0905, 15Mar84.
Awarded forfeiture of $161.00 per month for 1 month, restriction and extra duties for 14 days. Not appealed.
840604:  Counseled for deficiencies in performance and conduct. [Repeat violator of the UCMJ to include 2 NJP's for Articles 86 and 92.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

840815:  NJP for violation of UCMJ, Article 134:
 Specification: Knowingly and wrongfully possess 2.44 grams of marijuana on 1527, 26May84.
Violation of UCMJ, Article 92:
Specification: Having knowledge of a lawful order, failed to obey by fraudulently using a Highway 172 Pass.
Awarded forfeiture of $30.00 per month for 2 months, restriction and extra duties for 45 days, reduction to PFC. Not appealed.
841108:  Counseled for deficiencies in performance and conduct. [Concerning refusal on 16Oct84 to participate in a rehabilitation and or treatment program, specifically for formal drug rehabilitation.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

841130:  Applicant evaluated at Consolidated Drug and Alcohol Center and referred to ARS AD Head Clinic.

841203:  ARS AD Head Clinic: The client has three NJP's, two are for disrespect and UA, and the third for possession of marijuana (2.5 grams). He is currently pending a special court martial for a second possession charge. Impression: Drug dependent - marijuana. Recommendations: NDRC Miramar if retained on active duty. AA/NA meetings 3 times weekly.

850114:  SJA review determined the case sufficient in law and fact.

850121:  GCMCA [Commanding General, 2d Marine Division, FMF] 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.

Applicant's request for separation in lieu of trial is missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 850124 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).

In the applicant’s issues 1 and 2, the Board concurs with his statements, but does not find them relative.

In issue 3, the Board determined that the applicant is not correct. A review of his records indicates that the applicant was not in combat at the time of his counseling, that his unit was back in North Carolina. Additionally, the Board determined that the applicant was counseled about his drug usage and refused drug treatment. 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 P1900.16D), effective
27 Jun 89 until 17 Aug 95.

 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.

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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