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

FOR OFFICIAL USE ONLY

 ex-Cpl, USMC
Docket No. MD05-01451

Applicant’s Request

The application for discharge review was received on 20050830.  The Applicant requests the Discharge 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060628.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the Discharge Characterization of Service shall change to:  HONORABLE. The narrative reason for discharge shall remain: REVIEW ACTION.  

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application to the Board:

“My discharge is improper, because I was convicted of a crime that I did not commit.  The charge was later overturned, but only after serving 17 months in the Brig.  I almost lost my family and everything else.  Now I’m trying to go to school and I’m told that I can’t use my GI Bill, because of my discharge. And this is all because a judge said he just felt like I may have been involved.  I served my country and worked hard for my benefits and I feel like I should be able to use them.

Thank you

Documentation

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

Applicant’s DD Form 214  (Copy 4)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19920312 – 19921109		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19921110		Date of Discharge:  19971219

Length of Service (years, months, days):

Active:    05  01  09  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  20

Years Contracted:  6 

Education Level:  12				AFQT:  62

Highest Rank:  LCpl				MOS:  6057

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.5 (8)		Conduct:  4.5 (8) 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  National Defense Service Medal, Marksmanship Rifle Badge, Meritorious Mast, Letter of Appreciation (2), Sea Service Deployment Ribbon

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCELLANEOUS/GENERAL REASONS, authority:  MARCORSEPMAN Par. 6203.4

Chronological Listing of Significant Service Events:

931207:	Counseling:  Advised of deficiencies in performance and conduct (Failing to meet/maintain the height and weight standards for the Marines Corps.  Current weight is 200 lbs.  The maximum weight is 181, currently 19lbs over the maximum weight.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940304:	Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of Apr 94 Prom Period because of assignment of weight control.  Applicant chose not to make a statement.

940308:	Counseling:  Advised of deficiencies in performance and conduct (Concerning overweight, and being granted a four month extension on 940301 to achieve his weight goal.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940602:	Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of Jul 94 Prom Period because of assignment of weight control.  Applicant chose not to make a statement.

950621:	General Court Martial:
	Charge I: violation of the UCMJ, Article 81:
	Specification:  Did, at or about 951104, conspire with Sgt S_ A. A_-S_, U. S. Marine Corps, to commit an offense under the Uniform Code of Military Justice, to wit; wrongful possession of marijuana with intent to distribute and wrongful distribution of marijuana, and in order to effect the object of the conspiracy the said Lance Corporal D_ (Applicant) did receive the sum of $100.00 from the said Sergeant A_-S_ with which to purchase the said marijuana.
	Charge II: violation of the UCMJ, Article 112a (2 Specs)
	Specification 1:  Did, at Beaufort, S.C., on or about or between 4 November 1994, wrongfully possess some marijuana, with the intent to distribute the said controlled substance.
	Specification 2:  Did, at Beaufort, S. C., on or about 4 November 1994, wrongfully distribute some marijuana to Sergeant S_ A. A_-S_, U. S. Marine Corps.
	Findings: to Charge I and the specification thereunder, not guilty.
	Findings: to Charge II and the specifications thereunder, guilty.
	Sentence: Bad conduct discharge, eighteen (18) months confinement, total forfeiture of all pay and allowances, and reduction to pay grade E-1.
	CA 960225: Sentence approved and ordered executed.

950621:	Applicant to confinement

960816:	Applicant to appellate leave (extracted from CO VMFA(AW)-332 letter 971015)

970721:	Navy-Marine Corps Court of Criminal Appeals:  Assignments of error have merit, and accordingly, we set aside the findings and sentence.

971006:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions).  Although the Commanding General will make the determination of characterization if your are separated, I am recommending you receive a Honorable characterization of service.  The factual basis for this recommendation was the fact that the Applicant has been on leave since 16 August 1996, while awaiting appellate review of your General Court-Martial held on 21 June 1995.  On 21 July 1997, Navy-Marine Corps Court of Criminal Appeals set aside your General Court-Martial.  

971006:	Applicant advised of rights and having elected not to consult, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

971015:	Commanding Officer, Marine All Weather Fighter Attack Squadron 332, recommended to Commanding General, 2d Marine Aircraft Wing that the Applicant be discharged with a Honorable by reason of Convenience of the Government. 

971119	Commanding Officer, Marine All Weather Fighter Attack Squadron 332, letter stated it was not feasible to submit a statement from the Applicant’s immediate supervisor because the Applicant was assigned to VMFA(AW)-332 from appellate leave and immediately went on administrative leave awaiting administrative separation.

971208:	Commanding General, 2d Marine Aircraft Wing, advised the Commandant of the Marine Corps that the Applicant will be discharged with a general (under honorable conditions) by reason of convenience of the government due to review.

971217:	SJA review determined the case sufficient in law and fact.

971219:	Applicant’s DD Form 214 for discharge from the U. S. Navy for review action.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19971219 by reason of review action (A) with a service characterization of general (under honorable conditions).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper but inequitable (B and C). The Board’s vote was unanimous that the character of the discharge shall change to HONORABLE. The narrative reason for discharge shall remain: REVIEW ACTION.  The Applicant’s punitive discharge was set aside while he was on appellate leave. In this case, the characterization of service should be the “type warranted by service record.” The Board determined that the Applicant’s service record warranted an honorable discharge.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6203.4, REVIEW ACTION, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 31 Jan 97 until 31 Aug 01. 

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

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

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