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USMC | DRB | 1999_Marine | MD99-01057
Original file (MD99-01057.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD99-01057

Applicant’s Request
The application for discharge review, received 990802, 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/IN LIEU OF TRIAL BY COURT-MARTIAL, authority: MARCORSEPMAN Par. 6419.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. Use document(s) 1 and 2 to show desire for upgrade of service and personal character service.

2. Use document 3, 4, and 5 to show authorized discharge/discharge proceedings that should have transpired.

3.       Use document 6 to show attempt to tactfully and proficiently resolve the situation at hand. (Which in turn was rejected for illegitimate reasons.)
4.       Document 4: Physical Evaluation Board Disposition.
5.       Document 5: Unit Diary Retrieval Report showing discharge date and severence percentage.
6.       Document 6: Copy of Request Mast form (Denied by Command) relative to situation.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Statement in support of claim signed May 1999
Copy of marks
Copy of report of medical board dated May 12, 1997
Copy of preliminary findings of the Physical Evaluation Board Proceedings dated 15 July 1997
Copy of election of options for preliminary findings dated 24 July 1997
Copy of approval of discharge with severance pay dated September 23, 1997 (2 pages)
Statement from applicant
Eighteen 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)                930113 - 930907  COG

 Period of Service Under Review :
Date of Enlistment: 930908               Date of Discharge: 971031

 Length of Service (years, months, days):

         Active: 04 01 24
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 63

 Highest Rank: Cpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.6 (13)                      Conduct: 4.3 (13)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, MM, Certificate of Achievement (2), SSDR, MUC, Certificate of Commendation, Letter of Recognition

 Days of Unauthorized Absence: None

 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 :

950818:  NJP for violation of UCMJ, Article 92:
 Specification: Disobeyed a lawful order of MGySgt not to drive POV to Balboa Hospital because of back problems on 2Feb95
Violation of UCMJ, Article 132: Made by preparing a voucher for presentment to a person authorized to approve, allow, and pay it, a false claim on 31Mar95.
Awarded forfeiture of $497.00 per month for 2 months, extra duties for 45 days, reduction to PFC. Forfeiture for 1 month and reduction suspended for 6 months. Not appealed.
960906:  Counseled for deficiencies in performance and conduct. [Failure to report to appointed place of duty on 960905 and displaying poor judgement.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

961101:  NJP for violation of UCMJ, Article 86:
 Specification: Unauthorized absence 0645-0930, 4Oct96.
Awarded forfeiture of $558.00 per month for 1 month, reduction to LCpl. Reduction suspended for 6 months. Not appealed.
961217:  Vacate reduction to LCpl awarded at CO's NJP dated 961101.

 970203:  Counseled for deficiencies in performance and conduct. [Displaying negative attitudes and showing lack of teamwork.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970510:  NAVDRUGLAB, San Diego reported urine sample received 970502 tested positive for amphetamine and methamphetamine.

970512:  Medical Board Report: Refer to Physical Evaluation board for review and adjudication.

970521:  NAVDRUGLAB, San Diego reported urine sample received 970512 tested positive for cocaine and methamphetamine.

970603:  Substance abuse evaluation: Methamphetamine use not meeting criteria for abuse or dependency. Recommend Level I education and process for discharge.

970731:  Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 112A (6 specifications): Wrongful use of amphetamine/methamphetamine and cocaine, wrongfully possess cocaine and unknown quantity of methamphetamine.

970815:  Applicant is being held past EAS per convenience of the government (medical).

970923:  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: Wrongful use of controlled substances.

971016:  GCMCA [Commanding General, 3d Marine Aircraft Wing] 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 971031 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- 6, the Board found that the applicant was processed for a medical board and received a 10% disability rating. The Board further determined that the applicant was simultaneously being processed for discharge for the illegal use of methamphetamines. Disciplinary separation is not precluded by the disability statutes and such separations supersede disability separation (F). Relief denied.

The applicant is reminded that he is entitled to a personal appearance hearing provided his request for such reaches the NDRP within 15 years from the date of discharge.

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 [ 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.
F. Marine Corps Separation Manual , MCO P1900.16E of Aug 1995, par 8508.

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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