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

 ex-PFC, USMC
Docket No. MD00-00943

Applicant’s Request

The application for discharge review, received 000720, 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 010201.  After a thorough review of the records, 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/Conduct triable by courts-martial (request for discharge for the good of the service), authority: MARCORSEPMAN Par. 6419.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  I have always respected all branches of the armed forces, and apologize for my actions while serving.  I paid into the G.I.Bill and would like to go back school, to better my family for a better future.  That is why I am a requesting for an upgrade, I feel as though I deserve one. 

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:   USMC		None
	Inactive: USMCR(J)		881129 - 890302	COG

Period of Service Under Review:

Date of Enlistment:  890303		Date of Discharge:  920603

Length of Service (years, months, days):

	Active:  03  03  01
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  13			AFQT:  38

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.00 (11)		Conduct:  3.9(11)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Expert Badge, SSDR, NDSM, GCM 

Days of Unauthorized Absence:  30 

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

UNDER OTHER THAN HONORABLE CONDITIONS/Conduct triable by courts-martial (request for discharge for the good of the service), authority:  MARCORSEPMAN Par. 6419.

Chronological Listing of Significant Service Events:

900607:	Counseled for deficiencies in performance and conduct.  [Specifically, frequent violation of Article 86 UCMJ by reporting late for work or having excuses for not being where you are supposed to be on time, immature/lackadaisical attitude toward regulations concerning punctuality and timeliness] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

901107:	Counseled for deficiencies in performance and conduct.  [Financial management and responsibilities of having a checking account, ensure to maintain sufficient funds in checking account to cover all checks] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

910628:	NJP for violation of UCMJ, Article 111: Operated a motor vehicle while drunk.
Awarded forfeiture of $422.00 per month for 2 months, reduction to PFC (suspended for 6 months).  Not appealed.

911031:	Vacation of suspended sentence.

911205:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 86, (4 Specifications),
	Spec 1: UA (AWOL) from 911023-911028 [5days], Spec 2: UA (AWOL) from 911108-911112 [4days], Spec 3: UA (AWOL) from 911113-911114 [1day], Spec 4: UA (AWOL) from 0700-1930, 911203.  Charge II: violation of the UCMJ, Article 112: Incapacitated for the performance of his duties on or about 0700, 911026.  Charge III: violation of the UCMJ, Article 134: Dishonorably failed to pay debt in the amount of $29.85 to NCNB  
	Finding:  to Charge I and specifications 1 thru 4 thereunder, guilty, to Charge II and specification thereunder, guilty, to Charge III and specification thereunder, guilty. 
	Sentence:  Forfeiture of $563.00 pay per month for 1 month, restriction and extra duty for 45 days (suspended for 6 months), reduced to E-1.
	CA action 911210:  Sentence approved and ordered executed except of the forfeiture of $563.00 pay per month for a period of 1 month, Red to pay grade E-1, which are hereby suspended for a period of 6 months, at which time, unless sooner vacated will be remitted without further action.

920305:	Declared a deserter as of 0700, 920305 and dropped from the rolls of org on UD#085-92, dtd 920402.

920311:	NAVDRUGLAB [JACKSONVILLE, FL], reported applicant’s urine sample, received 920305, tested positive for cocaine and marijuana.

920331:	Report of Return: Applicant surrendered to military authorities on 920331 (1245) at Camp Lejeune, NC.  Returned to military control 920401 (2200).  Retained.

920401:	Pre-trail confinement from 920401

920512:	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: UA from 920305-920331 [26days], and Article 112a (2 specifications), Spec 1: Wrongful use of cocaine, Spec 2; Wrongful use of marijuana.

920520:	SJA review determined the case sufficient in law and fact.

920521:	GCMCA [Commanding Officer] authorized 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 920603 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, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (D and E).

In response to the applicant’s issue, the Board has no obligation to change the applicant's discharge in order to allow him to go back to school.  After examining the applicant’s record of counselings, his NJP, his Summary Court-Martial, and finally his admission to wrongfully using cocaine and marijuana, the Board finds absolutely no reason to change the applicant’s discharge.  The applicant is quite fortunate he received an other than honorable discharge vice the bad conduct discharge he could have received.  Relief denied.

The following is provided for the applicant’s edification.  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 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 is 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 P1900.16D), 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 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