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

 ex-LCpl, USMC
Docket No. MD00-00648

Applicant’s Request

The application for discharge review, received 000424, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance hearing discharge review before a traveling panel closest to (left blank).  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 DC 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 001102.  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/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.6.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  My discharge was inequitable because it was based on one isolated incident in 42 months of service with no other adverse action.  On November 6, 1998, I received a Non-Judicial Punishment on the charge of conspiracy to solicit drugs, UCMJ Article 83.  As a result of that conviction, I received a discharge of "Other Than Honorable".  What I did was unbecoming of a United States Marine and for that I am truly repentant.  My actions were also contrary to everything my parents had taught me, and all that I should have expected of myself.  I have never sold, brought or taken illicit drugs.  Be assured I will never sell, buy or take illicit drugs at any time.  It was incredibly bad judgement on my part to have asked or even mentioned anything about drugs especially since I was fully aware of the Marine Corps zero tolerance policy.  I would be the first to admit to an act of incredible stupidity and for that I am paying a significant price.  The punishment I received from the Marin Corps, in and of itself significant, cannot begin to compare to the punishment I have inflicted upon myself for my actions.  I wish I could relate the conversations I have had with myself, members of my family, my minister and others about my actions.  Up to that point in my career, I had honorably served more than 3 1/2 years without receiving any kind of disciplinary action.  I have received numerous commendations and had been promoted to the rank of Corporal (E-4).  Since my discard, I have been rejected from positions for which I was well qualified and which would have enhance my career.  In addition, I cannot afford to attend a college or a university to earn a degree without the restoration of my college benefits.  That one mistake, unless my discharge is upgraded, will haunt me throughout my life.  The repercussions of the mistake I made have cost me immeasurably and will continue to cost me into the future.
I respectfully request that you reconsider my case and upgrade my discharge to  "Honorable Discharge."  I want the opportunity to make a contribution to society both through enhanced employment and continued education. If you should any questions or if  can provide and additional information, please free to contact me (telephone number deleted) or by writing to me at (address deleted).  Respectfully submitted,

Documentation

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

Character reference dated December 14, 1999
Character reference dated November 2, 1999
Job/character reference dated January 19, 2000
Job/character reference dated March 22, 2000
Copy of annual performance appraisal dated March 22, 2000
Copy of DD Form 214
Copy of Adult Bible Study
Copy of the microfiche

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		940624 - 950611	COG

Period of Service Under Review:

Date of Enlistment:  950612		Date of Discharge:  990426

Length of Service (years, months, days):

	Active:    03  10  15
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  32

Highest Rank:  Cpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.5 (11)		Conduct:  4.3 (11)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, MUA, GCM

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.6.

Chronological Listing of Significant Service Events:

960731:	Counseled for deficiencies in performance and conduct.  [Irresponsibility in the specific case of losing ID for the third time.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

981110:	NJP for violation of UCMJ, Article 81:
Specification: Conspire with another for wrongful distribution of a controlled substance, to wit: marijuana on 0800, 21Oct98.
Awarded forfeiture of $591.00 per month for 2 months, restriction and extra duties for 45 days, reduction to LCpl.  Not appealed.

981112:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

981112:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights.

981117:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  The factual basis for this recommendation was your violation of the Uniformed Code of Military Justice, specifically conspiracy to distribute a controlled substance (marijuana). 

990415:	SJA review determined the case sufficient in law and fact.

990416:	GCMCA [Commanding General, 2d Marine Division, II Marine Expeditionary Force] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT 
REGULATION/LAW

Discussion

The applicant was discharged on 990426 under other than honorable conditions for misconduct due to the commission of a serious offense (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).

In response to the applicant’s issue, the applicant implies that a permissive doctrine exists whereby one in the military is allowed an "isolated incident".  The Board believes that the applicant is confusing this with the civilian world wherein some offenses are treated with leniency because they are a first time incident on an otherwise clear record.  No such leniency exists in the military.  The applicant is responsible for his actions and must accept the consequences of his misdeeds.  The Board will not grant relief on the basis of this issue.

The following is provided for the applicant’s edification.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (E).  The applicant must be aware that 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, may be considered by the NDRB.  The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is highly recommended. 

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 Aug 95 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 violation of the UCMJ, Article 81, conspiracy.

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