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

ex-LCpl, USMC
Docket No. MD01-00824

Applicant’s Request

The application for discharge review, received 010530, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance hearing in the Washington National Capital Region.  The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020529.  The applicant failed to appear for the scheduled personal appearance hearing and therefore is no longer eligible for review by this Board. 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.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  This discharge was given to me unknowingly, that I would have to apply for it to be upgraded.  I was told that in 6 months if I was not in trouble with the legal system it would be automatically upgraded.  It was presented to me by Capt. H_ of base legal after I was acquitted of a General Court-Martial, a month or two later I was charged with a bogus urine sample which was later dismissed, than I was charged with Unauthorized Absence which I requested mast and it was dismissed.  It was as if my company was hunting for me.  During these times I only had 6 to 8 months left, in the Corps.  My Lawyer said that things were gonna get rough but I didn't imagine it would be that bad, Then in about 3 weeks later my lawyer told me that the Naval Investigative Service had another charge coming and If I wanted to I could get out now or stay in and wait for something else to happen.  So I got out under his advice.  Had I known all of these repercussions, I would have stayed and fought charges.  I had great pro & con markings; I have good service award, meritorious unit citations and deployment ribbons with expert rifle badge.  Until my first judicial incident and only one the General Court martial I had been put upon a totem pole under bogus equations.  Now I am ready to buy a house but my discharge unknown to me is not in order.  And I believe an Honorable Discharge is warranted at this time.

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		850410 - 850801	COG

Period of Service Under Review:

Date of Enlistment:  850802		Date of Discharge:  881223

Length of Service (years, months, days):

	Active:    03  04  22
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  55

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.5 (11)		Conduct:  4.2 (11)

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, GCM, MM, JMU, MUC

Days of Unauthorized Absence:  None

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:

870919:	Applicant in hands of civilian authorities.

870926:	Applicant released from confinement.  Acquitted of charges.

880908:	NIS report.  Completed report found on microfiche.

881028:	NAVDRUGLAB, Jacksonville, FL reports urine sample, tested positive for cocaine.

881213:	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 distribute same amount of marijuana on 23Feb88 and wrongfully use cocaine between 3Oct88 and 13Oct88.

881214:	SJA review determined the case sufficient in law and fact.

881215:	GCMCA [Commanding General, 2d Marine Division, FMF] 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 881223 under conditions other than honorable 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).

Issue 1.  The applicant provided nothing to support his allegations that his command treated him unfairly. While he may feel that poor legal advice was a factor that contributed to his actions, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service. In the request for separation in lieu of court martial, signed on 881213, 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 record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

The applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the applicant’s enlistment.  Additionally, 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 the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct.  The applicant did not provide sufficient documentation to warrant an upgrade to his discharge.  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 P1900.16C), Change 2, effective 15 May 84 until 26 Jun 89.

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 “afls10.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