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USMC | DRB | 2002_Marine | MD02-01036
Original file (MD02-01036.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD02-01036

Applicant’s Request
The application for discharge review, received 020710, requested that the characterization of service on the discharge be changed to honorable. 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 030410. 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: BAD CONDUCT DISCHARGE/As a result of a courts-martial (SPCM) – Other, authority: MARCORSEPMAN Par. 1105.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

 1. I was waiting for a Medical Discharge which was on the Battalion Commander Desk it had been approved and was await his signature that' all. I had personal problems at home that was stressful because of my handicap with my left hand, and I went UA. So I could try to get my family back home to Chicago. I was waiting months and months for my Medical Discharge to where all kinds of personal problems raised at my home with my wife and two boys. Now my hand is worse now and over the years not being able to use my hand fully cause a great deal of pain and I need a upgrade of my discharge so I could be able to use my V.A. Benefits. Please help me obtain a Honorable Discharge. It has been many years and my left hand is no good to me now. I feel if my Medical Discharge was issued to me in a reasonable time in stead of being put in a pile on some desk I would not had to wait month and my personal problems would not have increased. I would have been able to handle my problems from the Civilian side of my life. Please help, God Bless you.

 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)                830521 – 830726  COG

 Period of Service Under Review :
Date of Enlistment: 830727               Date of Discharge: 871210

 Length of Service (years, months, days):

         Active: 03 01 08 (Does not include lost time)
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

Education Level: 12                        AFQT: 33

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.4 (9)                       Conduct: 3.0 (10)

 Military Decorations: None

 Unit/Campaign/Service Awards: Sharpshooter Rifle Badge, SSDR

Days of Unauthorized Absence: 90

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

BAD CONDUCT DISCHARGE/As a result of a courts-martial (SPCM) - Other, authority: MARCORSEPMAN Par. 1105.

 Chronological Listing of Significant Service Events :

840320:  (IHCA) 840320 to 840328 (9 days).

840702:  Counseled for deficiencies in performance and conduct. [Poor physical performance not up to minimum Marine Corps Standards.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

840904:  NJP for violation of UCMJ, Article 91: Did wrongfully disobey a lawful order given by SSgt H_, his superior Staff NCO, to attend Battalion PT at Bldg 62431, on or about 0715 on 840827.
         Award: Forfeiture of $150.00 pay per month for 1 month (suspended for 6 months), correctional custody for 7 days (suspended for 6 months). No indication of appeal in the record.

840917:  NJP for violation of UCMJ, Article 86: UA on or about 0545, 840906, from his appointed place of duty at which he was to be, to wit: Remedial PT, located at Bldg 62522.
         Award: Restriction and extra duty for 14 days. No indication of appeal in the record.

840918:  Suspension of NJP of forfeiture of $150.00 imposed 840904 and suspended 840904 for a period of 6 months is hereby vacated.

850228:  Counseled for deficiencies in performance and conduct. [Frequent involvement with military authority. Poor attitude resulting in poor performance of duties.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
860127:  Counseled for frequent involvement with military authorities.
860224:  NJP for violation of UCMJ, Article 112a: Did wrongfully use amphetamines, shown by a positive urinalysis tested on 851219, violation of UCMJ, Article 92: Having knowledge of a lawful order issued by his Platoon Sgt to report to the Battalion CP for road police, and order which it was his duty to obey, did, on or about 0615, 860123, fail to obey the same by not showing up until 0640, 860123.
         Award: Forfeiture of $300.00 pay per month for 2 months (suspended for 6 months), restriction for 45 days. No indication of appeal in the record.
860619:  Counseled for financial irresponsibility.

 860701:  Counseled concerning administratively reduced to the grade of PFC for failure to meet target weight assigned on weight control program.

860702:  Counseled on being implicated in an attempt to defraud the government; to wit: by design and in collaboration with his wife, falsely made statements to the Superior Court of California, County of San Diego, that he and his wife were separated, no child support was being paid, thereby making Mrs. T_ eligible for foodstamps she was applying for.

861008:  Applicant declared a deserter on 860908 having been an unauthorized absentee since 0630, 860908 from WPNS Co, 1stBn, 7thMar, 1stMarDiv, (REIN), FMF, CamPen, CA 92055.

861112:  Applicant surrendered to military authorities on 861112 (0800) at the Joint Reception Center, Camp Pendleton, CA.

861112:  To pre-trial confinement.

861210:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 86, Specification 1: UA from unit from 860819 until 860903 (15 days), Specification 2: UA from unit from 860908 until 861112 (66 days).
         Charge II: violation of the UCMJ, Article 112a,
         Specification: Wrongfully use cocaine between 860812 and 860905.
         Findings: to Charge I and specification 1 and 2 thereunder, guilty. To Charge II and specification thereunder, withdrawn.
         Sentence: Fine of $425.00 pay per month for 2 and a 1/2 months, confinement for 2 and a 1/2 months, reduction to E-1, and a bad conduct discharge.
         CA 870126: Sentence approved and ordered executed.

861219:  From confinement, to duty.
        
861222:  Applicant waived his rights to have his case considered by the Naval Clemency and Parole Board.

870109:  To appellate leave.

870413:  NMCCMR: Affirmed findings and sentence.

871117:  SSPCMO: Article 71c, UCMJ, having been complied with, bad conduct discharge ordered executed.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 871210 with a bad conduct discharge which was the sentence adjudged by a properly constituted special court martial that was determined to be legal and proper, affirmed in the legal chain of review and executed (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 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. Separation for misconduct takes precedence over separation for medical reasons. That the Applicant expected to be discharged for medical reasons does not mitigate his misconduct. With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency (C, Part IV). The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The NDRB found the Applicant’s service record devoid of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded. Relief denied.


Pertinent Regulation/Law (at time of discharge)

 A. Paragraph 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURTS-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16C), effective 821001 until 890626.

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 91, disobey a lawful order of a non-commissioned officer; Article 92, failure to obey a lawful general order; 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 “ 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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