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USMC | DRB | 2002_Marine | MD02-00101
Original file (MD02-00101.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD02-00101

Applicant’s Request
The application for discharge review, received 011015, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant listed a civilian counsel on the DD Form 293. The civilian counsel asked to have his name removed as counsel. In the acknowledgement letter the applicant was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in Washington, DC. The applicant did not respond.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020620. 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/Misconduct – Commission of a serious offense (all other) admin discharge board required but waived, authority: MARCORSEPMAN Par. 6210.6. Discharged in absentia.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


 Issues

1. Please note I was shot on leave and receive a medical discharge under honorable conditions my objective is to get the O. T H. remove out the veterans file so I can receive benefits.

 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)                860131 - 860209  COG

 Period of Service Under Review :
Date of Enlistment: 860210               Date of Discharge: 870107

 Length of Service (years, months, days):

         Active: 00 10 28
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 58

 Highest Rank: Pvt

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 2.5 (2)                       Conduct: 1.7 (3)

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 57

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct-Commission of a serious offense (all other) admin discharge board required but waived, authority: MARCORSEPMAN Par. 6210.6. Discharged in absentia.

 Chronological Listing of Significant Service Events :

860604:  Applicant in hands of civilian authorities.

 860609:  Applicant released from civilian authorities and released without trial, all charges dropped.
860716:  Applicant to pretrial confinement.

860926:  Applicant from pretrial confinement.

 860926:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 86 (3 specifications):
         Specification 1: Unauthorized absence from 1800, 26May86 until 1300, 27May86 (surrendered).
         Specification 2: Unauthorized absence from 1800, 1Jun86 until 2325, 9Jun86 (8 days/apprehended).
         Specification 3: Unauthorized absence from 0701, 17Jun86 until 2230, 13Jul86 (26 days/apprehended).
         Charge II: violation of the UCMJ, Article 112A:
         Specification: Wrongful distrubution of cocaine in San Diego, CA on 4Jun86.
         Findings: to Charge I and II and specifications thereunder, guilty.
         Sentence: Forfeiture of $426.00 pay per month for 6 months, confinement for 6 months.
         CA 961105: Sentence approved and ordered executed.

861022:  Applicant to Ortho with late effects of gun shot wound. Initial treatment at a Hollywood hospital.

861104:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to the commission of a serious offense.
861110:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

861125:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to the commission of a serious offense. The factual basis for this recommendation was drug abuse/commission of a serious offense.

861216:  Applicant to unauthorized absence 0600, 16Dec86.

861223:  Assistant Chief of Staff, SJA review determined the case sufficient in law and fact.

861224:  GCMCA [Commanding General, Marine Corps Base, Camp Pendleton, CA] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged, in absentia, on 870107 under other than honorable conditions for misconduct due to the commission of a serious offense (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. The applicant states that he was shot on leave and received a medical discharge under honorable conditions and wants to have the O.T. H. removed from the veterans file so he can receive benefits. The records show that the applicant received ortho treatment for late effects of a gunshot wound on 861022. The records also show that the applicant was notified of intended discharge under Other Than Honorable conditions by reason of misconduct due to drug abuse and misconduct due to commission of a serious offense on 861104. The applicant’s discharge was directed by the Commanding General, Marine Corps Base, Camp Pendleton on 861224 under Other Than Honorable conditions. The Board determined the discharge was proper and equitable. Relief is 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 injustice must have existed during the period of enlistment in question. No such error or injustice occurred 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 denied.

Pertinent Regulation/Law (at time of discharge)

 A. Paragraph 6210 MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16C), Change 2, effective 15 Apr 84 until 28 Jul 87.

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; Article 112a, wrongful use of 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 “ afls10.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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