Search Decisions

Decision Text

USMC | DRB | 2005_Marine | MD0501451
Original file (MD0501451.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-Cpl, USMC
Docket No. MD05-01451

Applicant’s Request
The application for discharge review was received on 20050830. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20060628. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, inequity in the characterization of the Applicant’s service was discovered by the NDRB. The Board’s vote was unanimous that the Discharge Characterization of Service shall change to: HONORABLE. The narrative reason for discharge shall remain: REVIEW ACTION.



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application to the Board:

“My discharge is improper, because I was convicted of a crime that I did not commit. The charge was later overturned, but only after serving 17 months in the Brig. I almost lost my family and everything else. Now I’m trying to go to school and I’m told that I can’t use my GI Bill, because of my discharge. And this is all because a judge said he just felt like I may have been involved. I served my country and worked hard for my benefits and I feel like I should be able to use them.

Thank you

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Copy 4)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19920312 – 19921109               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19921110             Date of Discharge: 19971219

 Length of Service (years, months, days):

 Active: 05 01 09
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: None
         Confinement:              None

 Age at Entry: 20

 Years Contracted: 6

Education Level: 12                                 AFQT: 62

 Highest Rank: LCpl                                  MOS: 6057

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.5 (8)              Conduct: 4.5 (8)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): National Defense Service Medal, Marksmanship Rifle Badge, Meritorious Mast, Letter of Appreciation (2), Sea Service Deployment Ribbon


Character, Narrative Reason, and Authority of Discharge (at time of issuance):
GENERAL (UNDER HONORABLE CONDITIONS)/MISCELLANEOUS/GENERAL REASONS, authority: MARCORSEPMAN Par. 6203.4

 Chronological Listing of Significant Service Events :

931207:  Counseling: Advised of deficiencies in performance and conduct (Failing to meet/maintain the height and weight standards for the Marines Corps. Current weight is 200 lbs. The maximum weight is 181, currently 19lbs over the maximum weight.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940304:  Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of Apr 94 Prom Period because of assignment of weight control. Applicant chose not to make a statement.

940308:  Counseling: Advised of deficiencies in performance and conduct (Concerning overweight, and being granted a four month extension on 940301 to achieve his weight goal.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940602:  Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of Jul 94 Prom Period because of assignment of weight control. Applicant chose not to make a statement.

950621:  General Court Martial:
         Charge I: violation of the UCMJ, Article 81:
         Specification: Did, at or about 951104, conspire with Sgt S_ A. A_-S_, U. S. Marine Corps, to commit an offense under the Uniform Code of Military Justice, to wit; wrongful possession of marijuana with intent to distribute and wrongful distribution of marijuana, and in order to effect the object of the conspiracy the said Lance Corporal D_ (Applicant) did receive the sum of $100.00 from the said Sergeant A_-S_ with which to purchase the said marijuana.
         Charge II: violation of the UCMJ, Article 112a (2 Specs)
         Specification 1: Did, at Beaufort, S.C., on or about or between 4 November 1994, wrongfully possess some marijuana, with the intent to distribute the said controlled substance.
         Specification 2: Did, at Beaufort, S. C., on or about 4 November 1994, wrongfully distribute some marijuana to Sergeant S_ A. A_-S_, U. S. Marine Corps.
         Findings: to Charge I and the specification thereunder, not guilty.
         Findings: to Charge II and the specifications thereunder, guilty.
         Sentence: Bad conduct discharge, eighteen (18) months confinement, total forfeiture of all pay and allowances, and reduction to pay grade E-1.
         CA 960225: Sentence approved and ordered executed.

950621:  Applicant to confinement

 960816:  Applicant to appellate leave (extracted from CO VMFA(AW)-332 letter 971015)

970721:  Navy-Marine Corps Court of Criminal Appeals: Assignments of error have merit, and accordingly, we set aside the findings and sentence.

971006:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions). Although the Commanding General will make the determination of characterization if your are separated, I am recommending you receive a Honorable characterization of service. The factual basis for this recommendation was the fact that the Applicant has been on leave since 16 August 1996, while awaiting appellate review of your General Court-Martial held on 21 June 1995. On 21 July 1997, Navy-Marine Corps Court of Criminal Appeals set aside your General Court-Martial.

971006:  Applicant advised of rights and having elected not to consult, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

971015:  Commanding Officer, Marine All Weather Fighter Attack Squadron 332, recommended to Commanding General, 2d Marine Aircraft Wing that the Applicant be discharged with a Honorable by reason of Convenience of the Government.

971119   Commanding Officer, Marine All Weather Fighter Attack Squadron 332, letter stated it was not feasible to submit a statement from the Applicant’s immediate supervisor because the Applicant was assigned to VMFA(AW)-332 from appellate leave and immediately went on administrative leave awaiting administrative separation.

971208:  Commanding General, 2d Marine Aircraft Wing, advised the Commandant of the Marine Corps that the Applicant will be discharged with a general (under honorable conditions) by reason of convenience of the government due to review.

971217:  SJA review determined the case sufficient in law and fact.

971219:  Applicant’s DD Form 214 for discharge from the U. S. Navy for review action.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19971219 by reason of review action (A) with a service characterization of general (under honorable conditions). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper but inequitable (B and C). The Board ’ s vote was unanimous that the character of the discharge shall change to HONORABLE. The narrative reason for discharge shall remain: REVIEW ACTION. The Applicant’s punitive discharge was set aside while he was on appellate leave. In this case, the characterization of service should be the “type warranted by service record.” The Board determined that the Applicant’s service record warranted an honorable discharge.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge. The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge. Representation at a personal appearance hearing is recommended but not required.

 Pertinent Regulation/Law (at time of discharge)

 A. Paragraph 6203.4, REVIEW ACTION , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 31 Jan 97 until 31 Aug 01.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .

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 “ http://Boards.law.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:

                  Secretary of the Navy    Council of Review Boards
                   Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023

Similar Decisions

  • USMC | DRB | 2005_Marine | MD0501195

    Original file (MD0501195.rtf) Auto-classification: Denied

    The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. 980729: Applicant advised of rights and having consulted with counsel, elected to waive all rights.980730: Commanding Officer, Marine Aircraft Group 12 recommended Applicant’s discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. You may view DoD Directive 1332.28 and other Decisional Documents by going...

  • USMC | DRB | 2006_Marine | MD0600323

    Original file (MD0600323.rtf) Auto-classification: Denied

    In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing. ” APPLICANT’S ISSUES AND DOCUMENTATION Issues, as stated Applicant’s issues, as stated on the application and/or from an attached document/letter to the Board: “ I Respectfully Request that my Discharge of general under honorable be changed to an Honorable. If thyroid studies normal, would concur with...

  • USMC | DRB | 2006_Marine | MD0600128

    Original file (MD0600128.rtf) Auto-classification: Denied

    Applicant chose not to make a statement.981029: NJP for violation of UCMJ, Article 86: At VMFA-323, MAG-11, 3d MAW, PFC D_(Applicant) was UA from his appointed place of duty (S-3) to weigh in and talk to Commanding Officer at 0800 on 16 Oct 98. The Applicant’s record fits the criteria for administrative separation on the basis of unsatisfactory performance and relief is not warranted. The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely...

  • NAVY | DRB | 2004 Marine | MD04-00634

    Original file (MD04-00634.rtf) Auto-classification: Denied

    MD04-00634 Applicant’s Request The application for discharge review was received on 20040303. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. Even though I received my punishment during my NJP.

  • USMC | DRB | 2002_Marine | MD02-01342

    Original file (MD02-01342.rtf) Auto-classification: Denied

    PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW Discussion The Applicant was discharged on 19980629 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 by appellate review authority and executed (A and B). Relief not warranted.The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15...

  • USMC | DRB | 2005_Marine | MD0501570

    Original file (MD0501570.rtf) Auto-classification: Denied

    (“I [Applicant] further understand that I have been recommended for Administrative discharge due to failing the Marine Corps weight control program two times and being assigned for the third time.”) Applicant chooses not to make a statement.970312: Commanding Officer, Marine Air Control Squadron 2, notifies Applicant that he is assigned to the squadron Physical Training Platoon as a result of not being within Marine Corps height and weight standards. Weight: 237. Not due to pathological...

  • USMC | DRB | 2005_Marine | MD0500660

    Original file (MD0500660.rtf) Auto-classification: Denied

    MD05-00660 Applicant’s Request The application for discharge review was received on 20050302. PART I - APPLICANT’S ISSUES AND DOCUMENTATION PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of discharge): Inactive: USMCR (DEP) 19970305 - 19970427 COG Active: USMC 19970428 - 20001003 HON Period of Service Under Review :Date of Enlistment: 20001004 Date of Discharge: 20021113 Length of Service (years, months, days):Active: 02 01 10 (Does not exclude lost...

  • USMC | DRB | 2005_Marine | MD0500957

    Original file (MD0500957.rtf) Auto-classification: Denied

    What I did to cause me to receive a Bad Conduct discharge I truly with all my heart regret y action.Now that I have been released from the Military Appellate Leave Status an been given a new chance to start my career over I respectfully request that my Bad Conduct Discharge be changed to General/under Honorable condition. Documentation In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:Applicant’s DD Form 214 (3) PART II -...

  • USMC | DRB | 2002_Marine | MD02-00466

    Original file (MD02-00466.rtf) Auto-classification: Denied

    PART I - APPLICANT’S ISSUES AND DOCUMENTATION Documentation In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:Letter from Applicant's Mother (5pgs)Copy of Envelope dated Feb 2001 sent to J_ W. D_Copy of Applicant's Birth Certificate Copy of DD Form 214 PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of discharge): Active: USMC None Inactive: USMCR(J) 950606 - 960122 COG Period of Service Under...

  • USMC | DRB | 2005_Marine | MD0501389

    Original file (MD0501389.rtf) Auto-classification: Denied

    Sep. Board. 040901: An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to commission of a serious offense, that such misconduct warranted separation, and recommended discharge with a general (under honorable conditions) characterization of service.040917: Applicant from confinement. In the course of reviewing the Applicant’s service record, transcript of the administrative discharge...