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

 ex-LCpl, USMC
Docket No. MD99-01257

Applicant’s Request

The application for discharge review, received 990930, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested a personal appearance hearing before a traveling panel closest to Detroit, Mich.  The applicant did not list any representative on the DD Form 293. In the acknowledgement letter to the applicant, the applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision
A documentary discharge review was conducted in Washington, D.C. on 000525.  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/IN LIEU OF TRIAL BY COURT-MARTIAL, authority: MARCORSEPMAN Par. 6419.The NDRB did note an administrative error on the original DD Form 214.  Block 25, Separation Authority should read: “MARCORSEPMAN Par. 6419” vice “MARCORSEPMAN par. 6210.5”, Block 26, Separation Code should read: “KFS1” vice “HKK1”.  Block 28, Narrative Reason for Separation should read:  “IN LIEU OF TRIAL BY COURT-MARTIAL” vice “Drug Abuse (board required but waived.)”.  The original DD Form 214 should be corrected or reissued as appropriate. 

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  My discharge was inequitable because it was based on one isolated incident in the 48 months of service with no other adverse action.  I went back and fished my time as per my congressmen requested and I would recieve a general dischagrge.  I feel taht my comander contently ride me because I was getting out soon.  I stopped my smoking pot.  Please change my status I want to go to School for Busines also I serve in the reserves.

Documentation

In addition to the service record, the following additional documentation, submitted by the applicant, was considered:

Letter from applicant's mother dated September 23, 1999
Copy of DD Form 214 (Member 4 and 1)

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Active:   None
	Inactive:  USMCR(J)		930225 - 931011	COG

Period of Service Under Review:

Date of Enlistment:  931012		Date of Discharge:  971103

Length of Service (years, months, days):

	Active:    04  00  22
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  46

Highest Rank:  Cpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (10)			Conduct:  4.3 (10)

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM, NDSM, MM, Certificate of Appreciation, Letter of Appreciation (2)

Days of Unauthorized Absence:  20

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

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT-MARTIAL, authority:  MARCORSEPMAN Par. 6419.

Chronological Listing of Significant Service Events:

930223:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

941117:	Counseled for deficiencies in performance and conduct.  [Driving violations.  Driving on base with a suspended license and passing an explosive laiden convoy.  Both these offenses are in violation of written base orders.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970226:	Counseled for deficiencies in performance and conduct.  [Absent from appointed place of duty, failure to notify NCOs in your chain of command when unable to be where you were supposed to be.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  Rebuttal to counseling entry found in service record book.

970806:	NJP for violation of UCMJ, Article 112A:
Specification: Wrongful use of a controlled substance.
Awarded forfeiture of $575.00 per month for 1 month, reduction to LCpl.  Not appealed.

970806:	Counseled for deficiencies in performance and conduct.  [Your recent NJP dated 970806 for violation of Article 112a of the UCMJ.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

971017:	Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 86: Unauthorized absence (UA) from 0631, 19Sep97 to 1430, 9Oct97 (22 days/surrendered), Article 123: Wrongfully and unlawfully make and deliver to Leatherneck, a certain check, value of $15.00, Article 134: Dishonorable fail to pay just debts, totaling $488.09, on 9Jul97, Article 107: False official documents.

971027:	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: Article 107: Article 123a and Article 134.

971031:	GCMCA [Commander, Naval Base Seattle] 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 other than honorable conditions by reason of conduct triable by courts-martial.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 971103 under other than honorable conditions 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 is under the impression that his discharge was based on one isolated incident.  The applicant is not correct.  The Board found that the applicant received one NJP for wrongful use of a controlled substance.  The Board also found that the applicant was charged with and plead guilty to the following additional violations of the UCMJ: Article 107; Article 123a; Article 86; and Article 134.  These charges were referred to a special court-martial, where the applicant could have received a punitive discharge.  However, the applicant elected an OTH discharge vice the special court-martial.  The applicant has provided no documentation to substantiate his other claims. Relief denied.

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 P1900.16E), effective 
18 Aug 95 until present.

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. 

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