Search Decisions

Decision Text

USMC | DRB | 2006_Marine | MD0600828
Original file (MD0600828.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD06-00828

Applicant ’s Request
The application for discharge review was received on 20060511 . 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 20070308 . After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant ’s service was discovered by the NDRB. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain Under Other Than Honorable Conditions by reason of separation in lieu of trial by court-martial.









The NDRB did note administrative error(s) on the original DD Form 214. Block 12c , Net Active Service This Period , should read: “ 02 07 25 , ” and Block 28, Narrative Reason for Separation, should read: “IN LIEU OF TRIAL BY COURT MARTIAL. ” The Commandant, Headquarters USMC, Quantico, VA, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

PART I - ISSUES AND DOCUMENTATION

Decisional Issues :

Equity – Maturity

Equity – Isolated incident

Equity – Post service

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant ’s DD Form 214 (Service 2)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19910622 - 19911222       COG
         Active: None
Period of Service Under Review :
Date of Enlistment: 19911223              Date of Discharge: 19940817

Length of Service (years, months, days):

 Active: 0 2 0 7 25
         Inactive: None

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

Age at Entry: 18
Years Contracted: 4
Education Level: 12                                 AFQT: 66

Highest Rank: LCpl                                  MOS: 2542 (Communication Center
                                                       Operator)

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (8 )                                 Conduct: 4.3 ( 8 )
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214 ): National Defense Service Medal, Rifle Marksman Badge, Letter of Appreciation


Character, Narrative Reason, and Authority of Discharge (at time of issuance):
UNDER OTHER THAN HONORABLE CONDITIONS/VOL DIS (IN LIEU OF TRIAL BY COURT MARTIAL), authority: MARCORSEPMAN Par. 6419.

 Chronological Listing of Significant Service Events :

910621:  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.
910622:  Pre-service waiver for MGD granted.

940328:  NJP for violation of UCMJ, Article 112a: On or about 940216, test positive for a controlled substance on a company urinalysis, methamphetamine.
         Award: Forfeiture of $ 466. 00 per month for 2 month s , restriction for 6 0 days, reduction to E- 2 . Not appealed.
940520:  Applicant to pretrial confinement.

 940809 :  NJP for violation of UCMJ, Article 91: Insubordinate and disrespectful to Corporal on 940728.
         Award: Forfeiture of $ 217.00 per month for 1 month. Not appealed.
940613 :  Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 92: In that Private First Class J_ T. E_( Applicant ), U.S. Marine Corps, 9 th Communications Battalion, 1 st Surveillance Reconnaissance and Intelligence Group, 1 st Marine Expeditionary Force, Fleet Marine Force, Camp Pendleton, California, did, onboard Camp Pendleton, California, on or about 940511, fail to obey a lawful general regulation, to wit: paragraph 1137, United States Navy Regulations, dated 900914, by witnessing the wrongful distribution of a controlled substance, a violation of Article 112a of the UCMJ, and failing to report the same.

940623 :  Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 112a: In that Private First Class J_ T. E_( Applicant ), U.S. Marine Corps, 9 th Communications Battalion, 1 st Surveillance Reconnaissance and Intelligence Group, 1 st Marine Expeditionary Force, Fleet Marine Force, Camp Pendleton, California, did, onboard Camp Pendleton, California, on or about between 931101 and 9 4 0520, wrongfully possess some amount of methamphetamines on divers occasions.

940725 :  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 than honorable conditions. The Applicant admitted guilt to the following violations of the UCMJ, Article 112a: Wrongfully possess methamphetamines on or about 940520.

940725:  Applicant ’s statement.

 940803 :  SJA review determined the case sufficient in law and fact.
940803 :  GCMCA, Commanding General, I Marine Expeditionary Force , directed the Applicant 's discharge under other than honorable conditions by reason of separation in lieu of trial by court-martial.

940809:  NJP for violation of UCMJ, Article 91: Insubordinate and disrespectful to a Corporal on 940728.
         Award: Forfeiture of $217.00 per month for 1 month. Not appealed.






PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19940817 in lieu of trial by court-martial (A and B) with a service characterization of under other than 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 and equitable (C and D).

In a signed statement, the Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial 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 112a, wrongfully possess methamphetamines on or about 19940520.

Equity – Maturity: The Applicant contends that at the time of his misconduct he was an immature young man and did not realize the implications of his behavior.

While the Applicant may feel that immaturity was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

Equity – Isolated incident: The Applicant contends that he experimented with drugs.
When the service of a member of the U.S. Marine Corps has been honest and faithful, it is appropriate to characterize that service as honorable. An under other than honorable conditions discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record. There is credible evidence in the record that the Applicant was involved in illegal drug activity. The Applicant’s service was marred by a nonjudicial punishment proceedings for violation of Articles 112a (wrongful use of a controlled substance) of the UCMJ. Subsequent to the nonjudicial punishment, charges were preferred against the Applicant for another violation of UCMJ Article 112a (wrongfully possess some amount of methamphetamine on divers occasions). Upon consultation with counsel, the Applicant requested a separation in-lieu of trial. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Marine Corps and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.
Equity – Post service: The Applicant states that he has had steady employment since 1998, that he has not used drugs since his discharge, that he has never been arrested and that he is a mature, hard working, respectable citizen.

Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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 Naval service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided any post-service documentation to consider mitigating the misconduct that resulted in the characterization of discharge. Relief denied.

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 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective
27 Jun 89 until 17 Aug 95.

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, (wrongful possession, use, etc., of controlled substances).

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

D. 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 | MD0501311

    Original file (MD0501311.rtf) Auto-classification: Denied

    The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable and the Narrative Reason for Separation be changed to “MEDICAL.” The Applicant requests a documentary record discharge review. “Dear Chairperson: After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the...

  • USMC | DRB | 2005_Marine | MD0501155

    Original file (MD0501155.rtf) Auto-classification: Denied

    MD05-01155 Applicant’s Request The application for discharge review was received on 20050629. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. The Applicant did not provide additional documentation for the Board’s consideration.

  • USMC | DRB | 2001_Marine | MD01-00227

    Original file (MD01-00227.rtf) Auto-classification: Denied

    I've served 11 years 9 months and 28 days of active service and was discharged with a Bad conduct discharge as a result of a Special Court Martial for a violation of Article 114A of the uniform code of Military Justice. Documentation In addition to the service record, the following additional documentation, submitted by the applicant, was considered:Copy of DD Form 214 (2 copies) Discharge Upgrading Questionnaire (10 pages) PART II - SUMMARY OF SERVICE Prior Service (component, dates of...

  • NAVY | DRB | 2005_Navy | ND0500534

    Original file (ND0500534.rtf) Auto-classification: Denied

    The Applicant requests the characterization of service received at the time of discharge be changed to general (under honorable conditions). As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the Applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174D, to include a review of his in-service...

  • USMC | DRB | 2002_Marine | MD02-01208

    Original file (MD02-01208.rtf) Auto-classification: Denied

    MD02-01208 Applicant’s Request The application for discharge review, received 020821, requested that the characterization of service on the discharge be changed to general/under honorable conditions. On 880812, the Applicant requested separation under conditions other than honorable in lieu of trial by court-martial. Even if the Applicant had accepted the special court-martial, the Board found no reason to believe that his discharge would have been anything except under conditions other...

  • USMC | DRB | 2006_Marine | MD0600139

    Original file (MD0600139.rtf) Auto-classification: Denied

    The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. My error in judgment had scarred my otherwise exemplarity record.” Documentation In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:Applicant’s DD Form 214 PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of discharge): Inactive: USMCR (DEP) 20020610 -...

  • USMC | DRB | 2006_Marine | MD0600781

    Original file (MD0600781.rtf) Auto-classification: Denied

    After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board determined that clemency was not warranted and that the characterization of discharge was appropriate. Documentation In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:Applicant’s DD Form 214 (State Director of Veterans Affair-6) Applicant’s DD Form 214 (Member 4) Applicant’s DD Form 214 (Member 1) PART II -...

  • NAVY | DRB | 2006_Navy | ND0601011

    Original file (ND0601011.rtf) Auto-classification: Denied

    The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions). Command currently separating member from USN for drug abuse.950302: Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to drug abuse, misconduct due to commission of a serious offense and misconduct due to a...

  • USMC | DRB | 2005_Marine | MD0501456

    Original file (MD0501456.rtf) Auto-classification: Denied

    PART I - APPLICANT’S ISSUES AND DOCUMENTATION 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 may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

  • USMC | DRB | 2001_Marine | MD01-00696

    Original file (MD01-00696.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:Copy of DD Form 214Letter from Assistant Majority Leader State Representative K___ G___Reference Letter from Marion County States Attorney J___ W. C____ PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of discharge): Active: USMC None Inactive: USMCR(J) 891212 - 900618 COG Period of...