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

ex-PVT, USMC  
Docket No. MD03-00575

Applicant’s Request

The application for discharge review was received on 20030212.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests 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 20040114.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  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 stated

Applicant’s issues, as stated on the application:

“1.  I stated at the time my father health was bad.  My father died in July on the 20th day the year 1990.  At the time his health was bad I couldn’t deal with it.  During this time I started doing drugs.  Today I am in a drug program turning my life around I like to have my discharge upgraded to honorable.  I have a honorable while in the Army.  The program I am in is for Vets and run by Vets.  I will be in the program for year.  The name of the program is called New Direction, it is in Los Angeles CA.  I have been here at this time 3 months with 9 months to go.  I like to continue going on with my life without any hang-ups.  I like to thank you for reviewing my records and hope to hear from you soon.  If you need any information you can write me and I can send it to you.”

Documentation

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

Business Card from Case Manager of New Direction, INC
Letter from Applicant dated September 15, 2003
Reference Letter from R_ R. A_, Case Manager, New Direction, INC dated September 15, 2003
Letter from Applicant dated May 20, 2003
Progress Report Letter from R_ B_, Case Manager, New Direction, INC dated May 20, 2003
Letter from Applicant dated March 15, 2003 
Copy of DD Form 214
Copy of DD Form 214 from Army/RA
Copy of Father’s Death Certificate
Letter from Applicant dated March 15, 2003
Progress Report Letter from R_ B_, Case Manager, New Direction, INC dated March 14, 2003

PART II - SUMMARY OF SERVICE

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

	Active:   USAR		791016 - 831013	HON
	Inactive: USMCR(J)		871105 - 880503	COG

Period of Service Under Review:

Date of Enlistment:  880504		Date of Discharge:  900706

Length of Service (years, months, days):

	Active:    01  02  08
	Inactive:  None

Age at Entry:  29			Years Contracted:  4 

Education Level:  12			AFQT:  32

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.4 (6)			Conduct:  3.4 (6)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Marksman Badge

Days of Unauthorized Absence:  330

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:

890117:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 86: Did, on or about 881228, without authority, absent himself from his unit, to wit: MCSFCo, Bangor located at NSB, Bangor, Silverdale, WA, and did remain so absent until he was apprehended on 881230; Charge II: violation of the UCMJ, Article 112a: On active duty, did, at or near NSB, Bangor, Silverdale, WA during the period of 881121 through 881130, wrongfully use cocaine, a schedule II controlled substance.
	Finding:  to Charge I and II, and the specification thereunder, guilty.
	Sentence:  Forfeiture of $461.00 pay per month for 1 month, reduced to E-1, confinement at hard labor for 30 days.
	CA action 890117:  Approved and ordered executed.

890618:	To UA.

900512:	Applicant surrendered 0950, 900512.

900606:	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: UA/AWOL from 0001, 18 June 89 to 0950, 900512.

900611:	SJA review determined the case sufficient in law and fact.

900622:	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 other than honorable conditions by reason of conduct triable by courts-martial.

900627:	NJP for violation of UCMJ, Article 112a: Did during the month of June use some amounts of cocaine as cited by NAVDRUGLAB msg 192023Z Jun 90.
Awarded forfeiture of $300.00 pay per month for 2 months, restriction and extra duties for 30 days, reduction to E-1.  Not appealed.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19900706 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.  On 19900606, the Applicant, after consulting with counsel, 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 violation of Article 86 of the UCMJ.  While he may feel that his father’s illness was a factor 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 evidence of record does not demonstrate 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.  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 for more than 30 days; and Article 112a, illegal drug use.

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