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USMC | DRB | 2000_Marine | MD00-00398
Original file (MD00-00398.rtf) Auto-classification: Denied


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


ex-Pvt, USMC
Docket No. MD00-00398

Applicant’s Request
The application for discharge review, received 000209, requested that the characterization of service on the discharge be changed to honorable or 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 000919. 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 (verbatim)

1. Because of present status, I'm having difficulty receiving benefits w/Department of Veterans Affairs. I've made a rash decision upon discharge and I respectfully request board to consider upgrade.

 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: USMCR             840523 - 841027  HON
          Inactive: USMCR(J)                840519 - 840522  COG
Period of Service Under Review :
Date of Enlistment: 850401               Date of Discharge: 860411

 Length of Service (years, months, days):
         Active: 01 00 11
          Inactive: None
Age at Entry: 19                          Years Contracted: 3

 Education Level: 12                        AFQT: 31
Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: 3.7 (7)                       Conduct: 3.0 (7)

 Military Decorations: None
Unit/Campaign/Service Awards: None

Days of Unauthorized Absence: 45
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 :

850510:  Counseled for deficiencies in performance and conduct. [As of 3May85 on his attitude, tardiness, and military bearing.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

851023:  NJP for violation of UCMJ, Article 91 (2 specs):
 Specification 1: Willfully disobey lawful order, to wit: report to GySgt after chow on 1730, 12Oct85.
 Specification 2: Willfully disobey lawful order, to wit: remain in BEQ room 328 while on bed rest, except for having to go to the Messhall, sickbay, and place of worship on 1800, 11Oct85.
 Awarded forfeiture of $347.00 per month for 2 months, restriction for 30 days. Not appealed.
851114:  Counseled for deficiencies in performance and conduct. [Financial irresponsibility as evidenced by the writing and cashing of personal checks with insufficient funds in his bank account.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

851223:  NJP for violation of UCMJ, Article 112A:
 Specification: Knowingly and wrongfully use a controlled substance to wit: cannabinoid, (unit sweep urinalysis)
 Awarded forfeiture of $319.00 per month for 1 month. Not appealed.
851230:  NJP for violation of UCMJ, Article 123A:
 Specification: Wrongfully and unlawfully draw and deliver to the Marine Corps Exchange, to wit: a check for $25.00
Specification 2:
 Awarded restriction for 60 days. Not appealed.
851231:  Applicant to unauthorized absence.
860215:  Applicant from unauthorized absence (45 days/apprehended).

 860310:  Counseled for deficiencies in performance and conduct. [A disregard for military authority, a lack of initiative, discipline, and sound moral character, as evidenced by 2 NJP's, Article 91 and 112A.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
860317:  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: Unauthorized absence from 31Dec85 until 15Feb86 and Article 134: Break restriction on 31Dec85.
860326:  SJA review determined the case sufficient in law and fact.

 860328:  GCMCA [Commanding General, 1 st Marine Division (Rein), FMF, Camp Pendleton] 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 860411 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).
The applicant stated his issue that he was having difficulty receiving benefits from the Veterans Administration. The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board. 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 also stated that he had made a “rash decision” by requesting his discharge. The Board found that in a signed statement, the applicant requested an administrative discharge under other than honorable conditions in lieu of a trail by court-martial. He consulted with counsel and was fully advised of the implications of his request. The applicant understood that if discharged under other than honorable conditions, it might deprive him of virtually all veterans' benefits based upon his current enlistment, and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received therefrom may have a bearing. The applicant stated he understood the elements of the offenses with which he was charged. He admitted he was guilty of violating Article 86: Unauthorized absence and Article 134: Breaking restriction. Relief will not be granted concerning this issue.
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 112a, wrongfully use a controlled substance.
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      


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