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

 ex-PVT, USMC
Docket No. MD02-00514

Applicant’s Request

The application for discharge review, received 020305, 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.  In the acknowledgement letter to the Applicant, he was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington, D.C. area.  Subsequent to the application, the Applicant elected a personal appearance hearing and obtained the Veterans of Foreign Wars as his representative.  

Decision

A personal appearance discharge review hearing was conducted in Washington, D.C. on 030318.  After a thorough review of the testimony, records, supporting documents, facts and circumstances unique to this case, NDRB found that the discharge was proper and equitable at the time of discharge.  However, after consideration of the Applicant's substantial post-service accomplishment, the Board determined that partial relief is warranted.  The Board’s vote was four to one that the character of the discharge shall change.  The discharge shall change to:  UNDER HONORABLE CONDITIONS (GENERAL)/Separation in lieu of trial by court-martial, authority:  MARCORSEPMAN Par. 6419.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  While on active duty I performed for 3 1/2 years Drug free.  I look back now and see that I used drugs to escape the reality of some of the situations that I had been in.  I know this is no excuse for my actions that I was punished for.  It took a few years after my discharge to realize my problems and face them head on.  I wish my superiors could have guided myself towards Drug Counciling instead of only the punishment phases.

I always kept a good attitude and stayed motivated even while being punished.  I never ran from my trouble that I got myself into. While in the Brig I was never in any trouble.

I would like to thank the board for taking the time to review my Discharge.  I hope you will see that I am a Great Asset to the community.  I will always love the time that I spent as a Marine no matter what the Decision.

2.  VFW Issue: We concur with the Applicant's contention that his discharge be upgraded. Post service clemency.

Documentation

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

         Letter of recommendation dated March 17, 2003
         Statement of community service from C_ G_, undated
         Volunteer Incident Participation Log from July 2002 thru February 2003
Copy of DD Form 214
Copy of Superior Service Certificate
Copy of Meritorious Performance Letter
Copy of Administrative Remarks (Pattern of Outstanding Performance)
Reference Letter from Board Chairman of Kemp Volunteer Fire Department
Copy of Internal Selection/Technician Skills Assessment (4 pgs)
Letter of Congratulation from President and Chief Executive of Proctor & Gamble
Copy of Contract Letter from Oklahoma Department of Commerce
Copy of Emergency Medical Technician Certificate
Copy of Emergency Medical Technician Certificate from Texas Department of Health
Copy of Fire Service Training Certificate from Oklahoma State University (Fire Fighter I)
Copy of Fire Service Training Certificate from Oklahoma State University (Fire Academy A)
Copy of Fire Service Training Certificate from Oklahoma State University (Fire Academy B)
Copy of Fire Service Training Certificate from Oklahoma State University (Hazardous Materials First Responder Awareness Level)
Copy of Fire Service Training Certificate from Oklahoma State University (Fire Service Instructor I)
Copy of Fire Service Training Certificate from Oklahoma State University (Fire Arson Detection)
Copy of Fire Service Training Certificate from Oklahoma State University (Fire Service Continuing Education) (2 copies)
Community Service Award dated October 27, 2001

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		820622 - 830120	COG

Period of Service Under Review:

Date of Enlistment:  830121		Date of Discharge:  870206

Length of Service (years, months, days):

	Active:    04  00  15
	Inactive:  None

Age at Entry:  19			Years Contracted:  6

Education Level:  12			AFQT:  38

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 			Conduct:  4.4  [Extracted from SJA message]

Military Decorations:  None

Unit/Campaign/Service Awards:  AFEM, MCEM, NUC, SSDR, CAR, HSM

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:

830819:	Counseled for deficiencies in performance and conduct.  [A civil conviction of six (6) months confinement which was suspended due to this, he is counseled that he meets the criteria to receive an other than honorable discharge as outlined in MARCORSEP MANUAL par. 6210.7b.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

841219:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 81: Did, on 840501, conspire with Cpl C. K_, USMC, to commit an offense under the UCMJ, to wit: larceny of grenades and .50 caliber ammunition boxes.  Charge II:  violation of the UCMJ, Article 121: Did, at Grenada, on 840501, steal two hand grenades and .50 caliber ammunition boxes.  Charge III: violation of the UCMJ, Article 108: Did, at CamLej, NC, on 840501, without proper authority, sell to LCpl B.V. B_, USMC, and B.G. T_, a civilian, explosive of a value of some amount, property of the U.S. Government.  Additional Charge I: violation of the UCMJ, Article 108: (5 Specifications), Spec 1: Did, onboard the U.S.S. Manitowac, during Apr84, without proper authority, dispose of by throwing them over the side of the U.S.S. Manitowac, two hand grenades, explosives of some value, military property of the United States; Spec 2: Did, onboard the U.S.S. Manitowac, on or between 15 and 30Apr84, without proper authority, dispose of by giving them to Cpl C.P. K_, USMC, two hand grenades, explosives of some value, military property of the United States; 	Spec 3: Did, at CamLej, NC, on or between 1 and 3May84, without proper authority, dispose of by giving them (sic) to Cpl C.P. K_, USMC, one hand grenade, an explosive of some value, military property of the United States; Spec 4: Did, at CamLej, NC, on 1May84, without proper authority, dispose of by throwing them into the intra-coastal waterway, four .50 caliber ammunition boxes, of some value, military property of the United States; Spec 5: Did, at West Onslow Beach, NC, on or between 15 and 31JUL84, without proper authority, sell to Cpl B. G. T_, USMC, and LCpl B.V. B_, USMC, two hand grenades, explosives of some value, military property of the United States. Additional Charge II: violation of the UCMJ, Article 121: (3 Specifications), Spec 1: Did, at Beirut, Lebanon, between Nov83 and Apr84, steal two hand grenades, explosives of some value, the property of the U.S. Government; Spec 2: Did, aboard the U.S.S Manitowac, on or between 15 and 30Apr84, steal two hand grenades, explosives of some value, the property of the U.S. Government; Spec 3: Did, at CamLej, NC, on or between 1 and 3May84, steal one hand grenade, an explosive of some value, the property of the U.S. Government.
	Findings:  to Charge I and specification thereunder, withdrawn.  To Charge II and specification thereunder, withdrawn.  To Charge III and specification thereunder, withdrawn.  To Additional Charge I and specifications 1 and 2 thereunder, withdrawn, to specification 3 thereunder, guilty, except for the words "one hand grenade," substituting therefore the words "three hand grenades." Of the excepted words, Not guilty; of the substituted words, guilty and of the Specification as excepted and substituted, guilty; to specifications 4 and 5 thereunder, guilty.  To Additional Charge II and specification 1 thereunder, withdrawn, to specification 2 thereunder, guilty; to specification 3 thereunder, withdrawn.
	Sentence:  Bad conduct discharge, confinement for 2 months, reduction to Pvt.
CA 850529:  Sentence approved and will be executed, but the execution of that part of the sentence extending to a bad conduct discharge is suspended for one year from the date of trial, at which time, unless the suspension is sooner vacated, the suspended part of the sentence will be remitted without further action.

850619:	Counseled concerning his pattern of outstanding performance.

860122:	Counseled for deficiencies in performance and conduct.  [SNM confirmed as being involved in illegal drug use or possession.  SNM counseled this date that subsequent involvement with drug use may lead to discharge by reason of misconduct IAW MCO 5355.1 and under the provision of MCO P1900.16C.  SNM also counseled that illegal drug use is a violation of local, state and federal law and may be subject to action under Article 134 of the UCMJ, and/or result in discharge.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

860311:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 112a: 
	Specification: Did at an unknown location on or between 851228 and 860107 wrongfully use marijuana.
	Findings:  to Charge I and specification thereunder, guilty.
	Sentence:  Confinement for a period of 5 months, forfeiture of $300.00 pay per month for 5 months, reduction to E-1.
	CA 860416:  Sentence approved and will be executed, but the execution of that part of the sentence extending to confinement in excess of two months is suspended for a period of 12 months from the date of this action, at which time, unless sooner vacated, the suspended part of the sentence will be remitted without further action.
	
860519:	Counseled for deficiencies in performance and conduct.  [Failure to conform to weight control/military appearance standards as set forth in MCO 6100.10.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

860813:	Counseled for deficiencies in performance and conduct.  [Substandard performance and unacceptable conduct.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

861105:	NAVDRUGLAB [NORFOLK, VA], reported Applicant’s urine sample, received 861023, tested positive for [THC].

861222:	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 violation of the UCMJ, Article 112a: Wrongful use of marijuana.

861223:	SJA review determined the case sufficient in law and fact.

870121:	GCMCA [Commanding General] 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 870206 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 a the time of issuance (D and E).

Issues 1 and 2.  After thorough review and supporting documentation, the Board found that the Applicant’s post-service conduct was sufficiently creditable to warrant an upgrade of his characterization of service to under honorable conditions (general).  The Applicant’s volunteer service, record of vocational training, and strong references demonstrated that the Applicant possessed character that was not always evident during his tour of active duty.  However, the Board found that the Applicant’s post-service conduct does not sufficiently mitigate his misconduct while on active duty to warrant full relief in the form of an honorable discharge.  Therefore, partial relief is granted.

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 108, disposition of military property, Article 121, larceny, 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