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

 ex-LCpl, USMC
Docket No. MD05-00033

Applicant’s Request

The application for discharge review was received on 20040927.  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 20050330.  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/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.  “Dear NAVY & MARINE CORPS BOARD,

I WOULD LIKE TO START OFF BY SAYING I NEED YOUR HELP AS SOON AS POSSIBLE BECAUSE MY HEALTH IS INVOLVED.  I NEED TO HAVE MY DISCHARGE UPGRADED FROM OTHER-THAN-HONORABLE TO HONORABLE SO THAT I CAN UTILIZE MY HEALTH BENEFITS AND SCHOOL BENEFITS FROM THE VETERANS ADMINISTRATION.

I TRULY WOULD LIKE TO SEE IF THE MARINE CORPS MOTTO EXISTS, “ONCE A MARINE ALWAYS A MARINE” AND “SEMPER FIDELIS” (ALWAYS FAITHFUL) EXISTS.  I'VE BEEN LIVING WITH CHRONIC PAIN IN MY LOWER BACK SINCE 2002 BECAUSE OF A TRAINING EXERCISE I DID ON THE BEACH WITH MY WORK SECTION FOR PHYSICAL TRAINING.  I’VE BEEN TOLD SINCE 2002 IT WAS NOTHING AND IT HAS GRADUALY BEEN GETTING WORSE TO WHERE I CANT BEND OVER WITHOUT LOSING MY BALANCE AND FALLING DOWN.  I CANT ACT LIKE THIS PAIN DOESN’T EXIST ANYMORE, SINCE 2002 I WENT BACK AND FORTH TO MEDICAL HAVING IT DOCUMENTED HOW BAD MY LOWER BACK PAIN WAS BUT NOTHING WAS EVER REALLY DONE FOR IT EXCEPT FOR ME RECEIVING A COUPLE OF MOTRIN HANDED TO ME.

I SINCERELY NEED YOUR HELP, I’VE BEEN GOING TO SCHOOL WITHOUT ANY HELP FROM THE MARINE CORPS BUT SINCE MY HEALTH IS DETIRIORATING AND I DON’T HAVE ANY MEDICAL BENEFITS AND CANT AFFORD THEM, I NEED HELP FROM MY BROTHERHOOD BECAUSE I CANT ANY LONGER GO AT IT ALONE.  SEMPER FIDELIS!

Respectfully,”

Documentation

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

Applicant’s medical record
Applicant’s service record (CD)

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		990927 - 991012	COG

Period of Service Under Review:

Date of Enlistment:  991013		Date of Discharge:  030124

Length of Service (years, months, days):

	Active:     03  03  12
	Inactive:  None

Age at Entry:  21			Years Contracted:  4

Education Level:  12			AFQT:  43

Highest Rank:  LCpl			MOS:  0121

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  NMF*			Conduct:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  RMB, NDSM, MM

Days of Unauthorized Absence:  None

*No marks found in service record

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT-MARTIAL, authority:  MARCORSEPMAN Par. 6419.

Chronological Listing of Significant Service Events:

020304:	Counseled for deficiencies in performance and conduct.  [Issuing checks with insufficient funds.  Specifically, during 20011101, you were counseled by your SNCOIC regarding issuing checks without sufficient funds.  This command was then notified on 20020118 that you issued three more worthless checks.  Writing checks without sufficient funds is a serious offense.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020724:	Applicant informed eligible but not recommended for promotion to Cpl for the months of July and August due to pending court-martial.  Applicant refused to sign.

021120:	Applicant informed eligible but not recommended for promotion to Cpl for the months of Sep, Oct, Nov, Dec due to pending court-martial.  Applicant refused to sign.

021220:	Applicant, having consulted with counsel certified under UCMJ Art 27b, requested discharge for the good of the service to escape trial by court- martial.  [Extracted from Chief of Naval Education and Training letter dated 030110.]

030110:	GCMCA [Chief of Naval Education and Training] 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.

Parts of Applicant’s separation package missing from service record

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030124 under other than honorable conditions in lieu of trial by court-martial (A and B).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (E).

Issue 1.  The Veterans Administration determines eligibility for post-service benefits, not the NDRB.  There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans’ benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

The Applicant requested separation in lieu of trial by court-martial.  In the request, the Applicant admitted guilt to the offenses with which he was charged and understood an administrative separation would be under other than honorable conditions. 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 inequity or impropriety must have existed during the period of enlistment in question.  No such inequity or impropriety 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, hardship, or for 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 P1900.16F), effective 
01 September 2001 until Present.

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 violations of the UCMJ that are considered serious offenses.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

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 “http://Boards.law.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:

		Secretary of the Navy Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023