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

 ex-Pvt, USMC
Docket No. MD00-00111

Applicant’s Request

The application for discharge review, received 991027, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant listed the Disabled American Veterans as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000622.  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 CONDITIONS OTHER THAN HONORABLE/Separation in lieu of trial by court-martial, authority: MARCORSEPMAN Par. 6419.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  On or about August of 1980, 1 took an unauthorized leave from duty to visit my family in New York.  I was prompted to leave when I received several letters detailing my mothers health, which at the time was not good.  Prior to me taking unauthorized leave, I put in the proper papers and requested leave.  I had accumulated sixty days of leave time.  I was denied my request.  I wrote a letter detailing my intentions and gave it to my Platoon Sargent via another soldier.  The soldier did not know my intentions.  I went home and found out my mother was having heart problems.  I helped my mother get better.  A few days later, I called my platoon and told them what happened.  I spoke to my Platoon Sargent and told him I was coming back on the next flight that day.  He Informed me that I was facing a Article 15 UCMJ for unauthorized leave as soon as I return.  I acknowledged my guilt without protest.  On September 11, 1980, 1 was disciplined under article 15 of the Uniform Code of Military Justice.  I was notified of reduction in rank from Lance Corporal to Private First Class effective immediately.  Once again, I accepted my punishment without protest and continued my military duties.  A few weeks later I had the honor of being part of a security detail protecting a convoy of trucks that were part of the WESTPAC that year.  This was my second WESTPAC tour.

2.  On or about April of 1981, my career in the military came to a crashing halt.  I was picked up by military investigators for questioning on a situation that occurred on base.  I was asked if they could search my wall locker.  I said yes without any legal advise because for one I had nothing to hide and two I did not no what was going on.  As they were getting ready to search my locker, I was escorted out of the barracks by a couple of investigators and taken to the Company Commanders office.  At the office I was asked if I had any knowledge of grenades on base.  I said "No Sir".  I was then told by one of the investigators that he was told by an informant, I had knowledge of grenades being brought on base.  Once again I said "I have no knowledge of grenades being brought on base nor do I have any Information of grenades on base.  They did not accept my answer and charged me on the bases of an informants Information.  I was also charged with having in my locker an envelope with suspected marijuana seeds in it.  I admitted to having seeds in my locker and regret ever taking part in marijuana.  I was taken to another building and processed.  After the processing I was put in a room where I sat for hours.  During these hours investigators would periodically come in and ask me if I had any knowledge or information about the case.  I continually replied "no" as I struggled to hold back my anger.  Late that evening I was transferred to the brig where I stayed for about two to three months.  During my time at the brig I was assigned a Navel lawyer who was working on my defense.  I was escorted back to my base in handcuffs to get some clothing and supplies.  I was put on work crews assigned to strip decks and shafts on ships.  I had two or three visits with my lawyer.  I did everything that was asked of me.  My feelings for the military at this point was a bitter one.  My short term goal was to re-enlist in the field of aerial photography for another four years.  If all went well I was thinking about making a career out of the military but my bitterness got the best of me. On the 29 and 30 of May 1981 and 5,8 and 9 of June 1981, I was tried by special court marshal on two charges.  Each charge carried three specifications.  Of charge 1, I was found Guilty for Violation of the Uniform Code of Military Justice article 92.  Of spec.  1 of charge I Not Guilty.  Of spec.2 of charge I Not Guilty.  Of spec. 3 of charge I Guilty.  This specification states that 2.55 grams more or less of marijuana was found in my locker.  I disagreed with the findings of this charge because around the time of my arrest an investigator told me that he found marijuana seeds in a envelope in my locker.  Not that I'm proud of having it but their was no marijuana in the envelope.  In court they stated they found marijuana in the envelope.  Not true.  My lawyer told me that it would be the right thing to do to accept this charge.  I admitted to having an envelope with seeds in my locker and regret ever taking part in the use of marijuana.  Today I take pride in admitting that since the court marshal, it does not exist in the surroundings of my life today, tomorrow and in the future.  I will not let it.  Of charge 2, 1 was found Not Guilty.  Of specification I of charge 2, Not Guilty.  Of specification 2 of charge 2 Not Guilty.  Of specification 3 of charge 2 Not Guilty.  My sentence was as follows, to be reduced in rank from Private First Class to Private and forfeiture in pay in the amount of $300.00 a month for four months.  Sentence was to be executed on August 27, 1981. The day I returned to base from the brig was the day I honestly knew deep down inside, my career in the military was over.  I was harassed as soon as I stepped foot in my barracks.  The upper enlisted personnel verbally harassed me on a constant basis.  Everyone in my platoon was told not to associate with me.  I was told that I was a danger to all the personnel on base.  I then found out that my family was affected by this.  My family and friends at home were questioned by the investigators concerning my charges back on base.  I felt like an outcast.  I was involuntarily transferred from company B to company A at the time for reasons unknown to me until a soldier in administrations Informed me that he over heard a soldier say that a group of soldiers were upset with my verdict.  They were going to make sure that my remainder of time in service was going to be an uncomfortable one.  My possessions in my locker were taken out while I was in the brig and put in the supply room.  As I was inspecting my equipment a First Sargent stood by checking my equipment at the same time verbally harassing me.  Some of the souvenirs that I collected while on tour in the pacific were taken by the First Sargent and handed to soldiers in the area.  I could not believe what was going on.  I asked him why he was giving my souvenirs to the soldiers.  He came close to my face and told me that I did not deserve them.  He was acting as if he wanted me to get into an altercation with him.  I knew better.  I did not engage.  I continued the inspection of my equipment.  The First Sargent left the supply room.  At that moment, I realized what the soldier in administrations told me was true.  As I was about to take my equipment the soldier in charge of supplies told me I needed release papers from administrations giving him permission to release my equipment to me.  I was going to say something but elected not to.  The soldier told me he had no other choice.  I knew this was not his doing.  I remember when I was approached by a Second Lieutenant after my sentencing in court who told me that he and other officers felt that I was kangarooed.  The feeling was being felt by others on base as well.  I took what little equipment I had with me to Company A until I was able to obtain the proper release papers.  I was not received well in Company A. They were also told not to associate with me.  I could not take it anymore.  I went through the proper channels to see the Brigade Commander.  The time came to see him.  I was announced and escorted into his office by his assistant.  I explained the situation I was experiencing.  He told me word had gotten to him explaining my situation and that an investigation by the company commanders showed that my complaint had no validity to it.  I never told the company commanders my situation.  As I was going up the chain of command, I explained to everyone I saw that my intentions to see the Brigade Commander was of a personal one.  At this time I had nowhere else to go.  I was blinded with hate and disgust.  Physically I was present.  Mentally I was absent.

3.  Around June of 1981, 1 made an irrational decision which has caused me to feel regret at many times in my life.  I left the United States Marine Corps.  At the time I thought it was the right decision to make.  Down the road of life I found out it was the wrong one.  For years I did not have the ability to hold down a job.  I was in fear of getting caught.  I found myself associating with people that had no direction in life.  Since I didn't know where to live I stayed with family.  I was going nowhere fast.  At times my family would take care of me financially.  At times I would take odd and end jobs.  This was becoming a never ending cycle. On August 14, 1986, 1 decided not to live in fear anymore.  I decided not to run anymore. I made a few phone calls and found out where a person absent from the military would be able to turn himself in.  I informed my family of my intentions and secured a ride for the trip to the base.
On August 15,1986, I voluntarily turned myself in to the United States Marine Corps.  Location, Company D, 2nd Battalion, 25th Marines, 4th Marine Division IMF USMCR Marine Corps Training Center US Army, ARDC Dover, New Jersey.  I was told to report early in the morning.  When I arrived on base I was instructed to report to the administration building where processing was to begin for my transfer to MCDEC, Quantico VA.  At 1442 hours that day I boarded a amtrak train headed for Quantico, VA.  I arrived that evening.  The administration offices were closed.  I reported to the Military Police.  I surrendered all papers to the officer in charge.  I was placed in Casual Platoon on base.  My intention was to receive my punishment and fulfill my commitment in the military.  Soon I would find out that was not to be.  The soldiers informed me if your put in casual platoon you are given two choices, You can accept a Discharge Other Than Honorable and go home or you can try to defend your case in a court martial and receive a Dishonorable Discharge plus a six month sentence in the brig.  I went around base and talked to different individuals about the choices.  The answers I received led to one thing, military cutbacks and down sizing.  A couple of people told me the government was cutting funds from the military.  Military personnel and military installations were affected by it.  I had no other choice but to accept the OTH.  It was the wisest of the two.  The officer who represented all the soldiers in casual platoon stated it was the right choice. On September 5,1986, a request for administrative separation other than honorable in lieu of trial by court martial was put in.  It was approved on September 16, 1986.
On September 19,1986, I was separated from the United States Marine Corps with a DD 214 stating, Discharge Under Other Than Honorable Conditions.  It was a sad day for me.  I so desperately wanted the opportunity to complete the remainder of my time and if all went well, re-enlist to a different MOS. Once I returned home it took awhile to readjust but I kept moving forward and eventually progressed in a positive way.  The bitterness I was harboring was gone and replaced with understanding and forgiveness.  Along the way God entered my life.  Although I tend to not go to church as often as I should, I still speak to him and he replies by putting obstacles in my way so that I may learn from them.  On April 22,1991 he put a beautiful young lady in my life.  I married that beautiful young lady God gifted me with, two years later.  While things were moving forward with certain obstacles in the way the feeling I had when I was a child came to mind.  I sometimes tinkered with the thought of becoming a police officer.  I shared this feeling with my wife and she told me that she would stand 110% behind me.  She tells me that I would be a good police officer because I'm an understanding person and I like to help people.  I put the feeling to the side temporarily and continued moving forward.  A couple of years went by.  The feeling came back.  This time it was stronger than before.  I started checking the yellow pages and came upon the U.S. Marshals phone number.  I picked up the phone and called.  I asked the person that answered if they were accepting applications.  I was told yes.  We exchanged information.  A few days later a application came in the mail.  I started filling it out when I noticed the section that read if served in the military please fill out.  It also read, applicant must have a DD214 with honorable discharge on it.  I knew I did not.  I put the application to the side and continued moving forward.  Until recently, about a year and a half ago, I promised myself that I will find a way to get into law enforcement.  I shared my thoughts with God, my wife, family and friends.  The feedback I got was nothing but positive.  I found out that I was able to get a copy of my records from St. Louis, MO.  My wife just happen to be going to St Louis to teach modem dance at Washington University.  She was hired to teach a few classes.  On her second trip back to St. Louis, I took time off from work to help my wife take care of our beautiful baby girl while she taught.  I also had the opportunity to get a copy of my service record on microfiche at 9700 Page avenue in St. Louis.  I also found out that I have a chance to upgrade my discharge to an honorable one.  When we arrived back home I started the process by calling and requesting the form DD293 be mailed to me as soon as possible.  Within a few days the form arrived.  Soon after, while visiting my in-laws in Atlanta, GA, we decided we were going to move to Atlanta to start a new life.  Word quickly got around that we were moving down to Atlanta.  Knowing that I was interested in getting into law enforcement, preferably the Atlanta Police Department, my mother in-law called a family friend who has a brother who is a major in the Atlanta Police Department.  Within days I was talking to the major.  He gave me the recruiters number and told me to request all the necessary papers needed to apply to be mailed to me as soon as possible.  I received the application a few days later.  Since receiving all the necessary forms needed to get me into law enforcement my wife and I have been busy working long hours, taking care of our child, filling out the forms little by little and preparing ourselves for the move to Atlanta, GA.  While all of this was going on, I have been seeing doctors for a eye muscle disorder I developed recently.  The doctors say it could have been caused by a number of things.  Lack of sleep, to much work or stress.  Eventually it will run its course and I'll be back to normal.  All I know is, this is just another obstacle for me to learn from.  SEMPER Fl!

4. 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 the evidence assembled for review, we find the FSM is seeking to upgrade his discharge to Honorable.  In a personal statement, the FSM admits to making inappropriate decisions while he was on active duty.  The FSM has moved on with his life and become a credit to society. However, his discharge is keeping the FSM from attaining his full potential in the work force.  The FSM maintains that he is married, has a daughter, a crime free record, and is in good standing with his current place of employment.  This discharge prevents the FSM from achieving his employment goals and from obtaining benefits from the Department of Veterans Affairs (VA).
We continue to support the FSM in his contentions and we ask for the boards careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the applicant.

Documentation

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

Letter from applicant dated June 19, 1999
Enlistment information on applicant

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		780711 - 781218	COG

Period of Service Under Review:

Date of Enlistment:  781219		Date of Discharge:  860919

Length of Service (years, months, days):

	Active:    02  07  10
	Inactive:  None

Age at Entry:  17			Years Contracted:  4

Education Level:  10			AFQT:  46

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.5*			Conduct:  4.5*

Military Decorations:  None

Unit/Campaign/Service Awards:  None 

Days of Unauthorized Absence:  1877

*Extracted from letter from Legal Officer, Security Battalion, MCDEC.

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

UNDER CONDITIONS OTHER THAN HONORABLE /Separation in lieu of trial by court-martial, authority: MARCORSEPMAN Par. 6419.

Chronological Listing of Significant Service Events:

810522:	Special Court-Martial.
	Charge I: violation of the UCMJ, Article 92 (3 Specifications):
	Specification 1:  Violate a lawful general regulation, to wit: by wrongfully having in his possession 3 M-67 fragmentation grenades with M213 fuzes. 
	Specification 2:  Violate a general regulation to wit: by wrongfully having in his possession one M-67 fragmentation grenade with M213 fuze.
	Specification 3: Violate a lawful general regulation on 810421, to wit: wrongfully having in his possession 2.55 grams of marijuana.
	Charge II: violation of the UCMJ, Article 134 (2 specifications):
	Specification 1: Did on or abt 810401, unlawfully receive one M-67 fragmentation  grenades with M213 fuzes, which property, he then well knew had been stolen.
	Specification 2: Did on or abt 810414, unlawfully receive one M-67 fragmentation grenade with M213 fuze, which property, he then well knew had been stolen.  
	Findings:  to Charge I, specification 1 and 2, not guilty; specification 3, guilty; to Charge II and specifications 1 and 2 thereunder, not guilty.   
	Sentence:  Fine of $300.00 pay per month for 4 months, reduction to Pvt.
	CA 810818: Sentence approved and ordered executed.

810624:	To unauthorized absence.

810724:	Declared deserter as of 0700, 810724.

860828:	Applicant surrendered to MA’s as of 2100, 860815.
 
860905:	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: Unauthorized absence  24Jun81 until 15Aug86 (1877 days/surrendered).

860916:	GCMCA [Commanding General, Marine Corps Development and Education Command] 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 conditions other than honorable by reason of conduct triable by courts-martial.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 860919 under conditions other than honorable in lieu of trial by court-martial (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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).

The Board acknowledges the applicant’s issues, 1-3, however they are non-decisional. Relief denied.

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (E).  The applicant must be aware that 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, may be considered by the NDRB.  The applicant has not provided any documentation to substantiate post-service factors, issue 4, which is required for granting clemency.  The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing and documentation of post service factors are highly recommended.

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 P1900.16C), Change 2, effective 15 May 84 until 26 Jun 89.

B.  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.  

C.  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.

D.  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