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

 ex-LCpl, USMC
Docket No. MD03-01491

Applicant’s Request

The application for discharge review was received on 20030909.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a documentary record review.  The Applicant did not list a representative on his DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040610.  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 CONDITIONS OTHER THAN HONORABLE/Separation in lieu of trial by court-martial, authority: MARCORSEPMAN Par. 6419.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1.  I would like to be considered for an upgrade from under other than honorable condition to general under honorable conditions.  I know I was wrong in going UA 3 days but I had had prior service from 1981 until 1986 without any incidents and even allowed to reenter the Marine Corps a year later.  I ask that I be granted an upgrade so that I can use all my Veterans benefits I feel I earned before I erred and was discharged.”

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:   USMC		810527 - 850526	HON
	Inactive: USMCR (J)		810425 - 810526	COG

Period of Service Under Review:

Date of Enlistment:  870108		Date of Discharge:  881229

Length of Service (years, months, days):

	Active:    01  09  09 (Takes into account lost time.)
	Inactive:  None

Age at Entry:  23			Years Contracted:  4 

Education Level:  12			AFQT:  31

Highest Rank:  Cpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.4			Conduct:  3.4 

Military Decorations:  GCM

Unit/Campaign/Service Awards:  SSDR

Days of Unauthorized Absence:  36

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:

870806:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 112a:  Wrongful use of cocaine.
	Findings:  to Charge I, guilty.  
	Sentence:  Confinement for four months, forf of $100.00 for 3 mos., red to E-2.
CA 871021:  Sentence approved and ordered executed except for the confinement for four months was suspended of a period of six months.

871119:	Counseled for deficiencies in performance and conduct.  [Frequent involvement with financial difficulties.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

880106:	Counseled for deficiencies in performance and conduct.  [Frequent involvement with financial difficulties.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

881203:	Counseled for deficiencies in performance and conduct.  [Continuous tardiness to work.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

880216:	Counseled for deficiencies in performance and conduct.  [Voluntary admittance to drug use.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

880721	NAVMC 118 (11):  48 hrs UA (AWOL)

880923	NAVMC 118 (11):  48 hrs UA (AWOL)

881001	NAVMC 118 (11):  10 day UA (AWOL)

881021	NAVMC 118 (11):  10 day UA (AWOL)

881026	NAVMC 118 (11):  Termination of absence report when Marine surrendered.

881121:	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 honorable conditions.  The Applicant admitted guilt to the following violations of the UCMJ, Article 86 (Spec 1):  on or about 880921 absent himself until on or about 881011; (Spec 2):  on or about 881012 absent himself until on or about 881026; Article 91:  was disrespectful in language toward a staff noncommissioned officer then know to him.

881122:	SJA review determined the case sufficient in law and fact.  “Significantly poor pro/cons and a prior conviction for drug use make this man an excellent candidate for sure separation by GOS.”

881130:	GCMCA [Commanding General, 1st Marine Division (Rein)] 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 19881229 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’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  Normally, to permit relief, an error or inequity must have existed during the period of service in question.  No such error or inequity occurred during the Applicant’s tenure.  Additionally, there is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, good conduct in civilian life, subsequent to leaving the service or the applicant’s desire to avail himself of “Veterans benefits (he) feels (he) earned.”  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent 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, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that should have been provided to receive consideration for relief, based on post-service conduct.  The Applicant provided no evidence of post-service conduct.  Relief not warranted.

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 86, Unauthorized Absence; Article 91, Insubordinate Conduct Toward Warrant Officer, Noncommissioned Officer, or Petty Officer or Article 112a Wrongful Use, Possession, etc., of Controlled Substances.

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