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

 ex-Pvt, USMC
Docket No. MD02-00734

Applicant’s Request

The application for discharge review, received 020425, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The Applicant requested a personal appearance discharge review before a traveling panel closest to San Diego, CA.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter to the Applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington, D.C. area.  The NDRB also advised that the Board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030131.  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/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, as submitted

1.  In May of 1990, I  had a special court-martial.  The outcome was brig time but no discharge from service.  DESPITE this many thought I should have been discharged.  This stigma follow me through my next POS.  Upon checking in at 1st supply Bn. 1st FSSG.  I was immediately told by the company commander that I am being watched and any wrong move i make would result in my immediate processing for discharge. He felt that the special court-martial should have taken care of that.  Months ensured total chastising by the company CO and other.  Requests and forms I submitted for advance Pay was mysteriously missing and I was told my requests cannot be honored because I may not be around to repay the gov't.

At that point I knew my fate was already decided.  Being late for formation was treated as Office Hours.  I stood detention and Barracks and Police duty I was marked and I had no way to climb out.  A few highly enlisted marines felt sorry form me and tried their best to protect me as much as they could BUT, the opposition was too much.  In JUNE Of 1990, My conduct was deemed Triable by court-martial.  I  OPTED for discharge for the good of the service (GOS).  I got it immediately.  I wondered why, but I know now.  They called My bluff.  I should of went to court and prove my innocence, but I was too afraid risking a DD or BCD.  So I am now trying to make this plea to upgrade my discharge to at least General Discharge if Honorable is Unattainable.  April 11, 2002

Documentation

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

Applicant's DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		860703 - 870630	COG

Period of Service Under Review:

Date of Enlistment:  870729		Date of Discharge:  910703

Length of Service (years, months, days):

	Active:    03  11  05
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  31

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.9 (9)			Conduct:  3.9 (9)

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, NDSM, MM (2), Letter of Appreciation

Days of Unauthorized Absence:  2

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:

891107:	NJP for violation of UCMJ, Article 86 (9 specs):
Specification 1: Unauthorized absence from remedial PT at 0530, 890814.
Specification 2: Unauthorized absence from remedial PT on 890815.
Specification 3: Unauthorized absence from remedial PT on 890822.
Specification 4: Unauthorized absence from remedial PT on 890828.
Specification 5: Unauthorized absence from remedial PT on 891010.
Specification 6: Unauthorized absence from remedial PT on 891011.
Specification 7: Unauthorized absence from remedial PT on 891018.
Specification 8: Unauthorized absence from remedial PT on 891020.
Specification 9: Unauthorized absence from remedial PT on 891031.
Violation of UCMJ, Article 92:
Specification: Derelict in duties in scoring only 45 points on a PFT on 891027.
Awarded forfeiture of $391.00 per month for 2 months, restriction and extra duties for 45 days, reduction to PFC.  Forfeiture suspended for 5 months.  Not appealed.

900423:	Special Court-Martial.
	Charge I: violation of the UCMJ, Article 123a (21 specs):
	Specification 1 - 4: Make and utter certain checks totaling $200.00 without sufficient funds between 890301 and 890305, with the intent to defraud.
	Specification 5 - 21: Make and utter certain checks totaling $1,292.25 without sufficient funds between 890308 and 890416, with intent to defraud.
	Findings: to Charge I and specifications 1 - 21 thereunder, guilty.
	Sentence: CHL for 100 days, forfeiture of $200 per month for 4 months, reduction to Pvt.
	CA 900605: Sentence approved and ordered executed.

900508:	Counseled for deficiencies in performance and conduct.  [Assignment to the command weight control program.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

900829:	Counseled for deficiencies in performance and conduct.  [Frequent involvement with military and or civil authorities.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

901103:	NJP for violation of UCMJ, Article 86:
Specification: Failure to go at the time prescribed to Co PFT at 0800, 901027.
Awarded forfeiture of $168.00 per month for 1 month, restriction for 7 days.  No indication of appeal found in record.

901123:	Counseled for deficiencies in performance and conduct.  [Frequent involvement with military authority.  Specifically that Applicant received NJP on 7 November 1989, a SPCM on 23 April 1990, and NJP again on 3 November 1990.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

910225:	Applicant informed eligible but not recommended for promotion for the month of March 1991 because of assignment to the weight control program.

910325:	NJP for violation of UCMJ, Article 86:
Specification: Unauthorized absence from 0600, 910308 to 0800, 910310 (2 days/surrendered).
Awarded forfeiture of $175.00 per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

910426:	Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 86: Failure to go at the time prescribed to appointed place of duty on 910424, to wit: Company Office, Building 22210, Article 123a (12 specs): Wrongfully and unlawfully make and utter checks totaling $355.00, and Article 134: Wrongfully obtain from U.S. Sprint services, of a value of less than $100.00, to wit: unauthorized long distance phone calls.

910531:	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 86: Failure to go on 910424, Article 123a (12 specs): Utter checks without sufficient funds, Article 134: Obtain services under false pretenses.

910606:	Applicant informed eligible but not recommended for promotion to PFC for the month of June 1991 because of pending court martial.

910611:	SJA review determined the case sufficient in law and fact.

910611:	GCMCA [Commander, 1st Force Service Support Group] 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 other than honorable conditions by reason of conduct triable by courts-martial.

910613:	Applicant informed eligible but not recommended for promotion to PFC for the month of July 1991 because of pending court martial.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 910703 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, 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’s discharge characterization accurately reflects his service to his country.  The Board’s charter limits its review to a determination on the propriety and equity of the discharge.  While he may feel that problems with his chain of command were factors that contributed to his actions, the record clearly reflects his disregard for the requirements of military discipline and demonstrated that he was unfit for further service.  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.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity is evident 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.  Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  Representation at a personal appearance hearing is recommended but not required.

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 86, unauthorized absence; Article 92, failure to obey a lawful general order; Article 123, worthless checks; and Article 134, false pretenses.

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