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

ex-Pvt, USMC
Docket No. MD01-00227

Applicant’s Request

The application for discharge review, received 001215, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested a documentary record discharge review.  The applicant designated the VETERANS OUTREACH CENTER as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010615.  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:  BAD CONDUCT DISCHARGE/As a result of a courts-martial (SPCM) – Other, authority: MARCORSEPMAN Par. 1105.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  Hello, Board Members, 

     My name is K_ R. W_ (Applicant), SS# --- -- ----.  I entered the United States Marine Corps, in June of 1979.  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.

     Since my discharge I have often wondered why.  After so many years of honest and faithful service, why I was awarded such a harsh discharge.  I wasn't a bad marine, in fact, at the time of my discharge I was selected for promotion to Staff Sergeant (E-6).  I was just awarded my 3rd award good conduct medal, and my career was beginning to take off.

     I realize that the U.S. Armed Forces has a zero tolerance policy for drug use and believe such a policy should be strictly enforced, but, I also know that my case was a one time isolated incident.  I wasn't a constant problem marine, in fact I was professional and respected through out the Battalion.

     I'm writing to you, Board Members to request that you reconsider my discharge status, and hope that you might be inclined to upgrade it to a General under Honorable condition.

     I'm not seeking any special benefits, only the Honor of having a flag on my coffin if I die, so my family and friends know that I was and still am willing to give my life in defense of this Great Nation.  Thank you for your time and consideration.  
Sincerely, (APPLICANT)

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 service, type of discharge):

	Active:   USMC		851230 - 890222	HON
					821027 - 851229	HON
					790629 - 821026	HON
	Inactive: USMCR(J)		790427 - 790628	COG

Period of Service Under Review:

Date of Enlistment:  890223		Date of Discharge:  910927

Length of Service (years, months, days):

	Active:    02  07  05 (Doesn't exclude confinement/lost time)
	Inactive:  None

Age at Entry:  27			Years Contracted:  6

Education Level:  12			AFQT:  50

Highest Rank:  Sgt

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  2.5 (1)			Conduct:  2.5 (1)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Expert Badge (4), SSDR (w/2 stars), GCM (w/3 stars), NUC, LOA 

Days of Unauthorized Absence:  10 

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

BAD CONDUCT DISCHARGE/As a result of a courts-martial (SPCM) - Other, authority:  MARCORSEPMAN Par. 1105.

Chronological Listing of Significant Service Events:

890223:	Reenlisted for 6 years at MCB Camp Pendleton, CA.

890320:	Counseled for deficiencies in performance and conduct [traffic violations resulting in the loss of six or more points in the six month period preceding 890314].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

890816:	Special Court-Martial. (Trial dates 15 - 16 AUG 89)
	Charge I:  violation of the UCMJ, Article 112a:
	Specification:  Within five days prior to 17 Feb 89, wrongfully use amphetamine/methamphetamine. 
	Specification 2:
	Additional Charge:  violation of the UCMJ, Article 112a:
	Specification: Within five days prior to 12 Jun 89, wrongful use amphetamine/methamphetamine.
	Findings:  to Charge I and specification and the additional charge thereunder, guilty.  
	Sentence:  Bad Conduct discharge, hard labor without confinement for three months, and, reduction to E-1.
	CA 891117:  Sentence approved and ordered executed except for the BCD.

890915:	To unauthorized absence.

890925:	Hdqtrs Support Battalion informed applicant's spouse of his absent since 15 SEP 89.

891003:	Returned from unauthorized absence.

891003:	Pre-trial confinement.

891018:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 112a (2 Specifications).
	Specification 1 - during the period from o or about 20 July 89 to 25 July 89, at or in the vicinity of Marine Corps Base, Camp Pendleton, CA, wrongfully use cocaine, said use being of sufficient quantity that the cocaine metabolite was present in the Said SGT (Applicant)'s urine on or about 25 July 89.
Specification 2:  did during the period from on or about 20 Jul 89 to 25 Jul 89, at or in the vicinity of Marine Corps Base, Camp Pendleton, CA, wrongfully use amphetamine/methamphetamine, a schedule III controlled substance, said us being of sufficient quantity that the amphetamine metabolite was present in the said SGT (Applicant)'s urine on or about 25 July 89, at Marine Corps Base, Camp Pendleton, CA
Charge II:  violation of the UCMJ, Article 86:
Specification:  did, on or about 15 September 89, without authority, absent himself from his organization, to wit: Hqtrs/Support Battalion, MCB, Camp Pendleton, CA and did remain so absent until on or about 3 October 89, when he surrendered to Military authorities.
	Finding:  to Charge I and the specifications 1 and 2 thereunder, guilty.
	To Charge II and the specification thereunder, guilty.
	Sentence:  Confinement for 30 days, forfeiture of $721.00 pay per 1 months, reduced to E-4.
	CA action 891025:  Sentence approved and ordered executed 

891018:	To confinement.

891027:	Returned to Duty.

891102:	To unauthorized absence.

891114:	Hdqtrs Support Battalion informed applicant's mother of his absent since 2 NOV 89.

891117:	NMCCMR:  Affirmed findings and sentence as adjudged on 16 Aug 89 by Special Court-Martial.

891215:	Applicant declared a deserter on 891215 having been an unauthorized absentee since 1400, 891115 from Hqtrs and Support Battalion, MCB, Camp Pendleton, CA and dropped from the rolls.

900330:	To appellate leave.

900501:	NC&PB denied clemency and restoration.  Mbr is to be afforded the opportunity for inpatient treatment and then comply with execution of punitive separated.

901023:	COMA:  Petition for review denied.

910510:	SSPCMO:  Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed.  CO, Separations Company, Hdqtrs and Support Battalion, MCB, Camp Pendleton directed to offer member opportunity for 30 days inpatient treatment at a Veterans Administration Medical Facility and to discharge member with a bad conduct discharge after completion of the inpatient treatment or waiver thereof.

910926:	No reply to CO's ltr of 910809 to member concerning in-patient treatment at Veteran's Administration Hospital and command presumed that member constituted a waiver of his right to avail himself of the treatment.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 910927 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 in the legal chain of review and executed (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).

In the applicant’s issue 1, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts.  With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency. (B, Part IV)   The applicant's case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  The NDRB found the applicant’s service record devoid of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded.  The applicant is reminded that he remains eligible for a personal appearance hearing provided that an application is received within 15 years from the date of discharge.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURTS-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