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

ex-PFC, USMC
Docket No. MD00-00770

Applicant’s Request

The application for discharge review, received 000530, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested 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 010116.  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 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  After a Special Court Martial, which I was awarded 35 days confinement, a fine, and no discharge, I was told I would be retained in order to train new Marines sent to our machinegun platoon and would be fully intergrated back into the platoon.  I gratefully accepted and tried diligently to perform to the best of my abilities and win back the respect of both my peers and my superiors.  Upon return to Camp Pendleton in May 1999, I learned that an administrative separation package that was started in September 1998 would be reinstated in order to separate me one month from my scheduled EAS.  This action was taken without regard to request from my entire platoon chain of command, including my company commander, a Certificate of Commendation while serving as a machine gunner, and winning a battalion level meritorious promotion competition that I was denied for no stated reason.

2.  Since my separation from active duty, I have maintained steady employment with Cattle Barron Restaurants while attending Eastern New Mexico University.  After summer school, I plan to attend Texas Tech University to pursue a degree in Computer Science.  Despite my mistakes, I learned many valuable lessons from four years service in the Marine Corps that will help me achieve my goals in life, and I do not regret serving.  I ask that you take the positive aspect of my record into account as my immediate command did and not negatively impact the remainder of my life for actions I regret and paid for.  Please find letter of recommendation from employment Supervisor and English Professor. 

Documentation

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

Copies of DD Form 214 (2)
Police Record Check Request
Employment Reference Letter
English Honor's Reference Letter
Grade Report
Copy of Letters of Retention (5)
Copy of Certificate of Commendation 

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		950225 - 950731	COG

Period of Service Under Review:

Date of Enlistment:  950801		Date of Discharge:  990830

Length of Service (years, months, days):

	Active:    04  00  29
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  67

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0 (9)			Conduct:  3.9 (9)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, AFEM (Persian Gulf), SSDRw1*, GCM, LOA

Days of Unauthorized Absence:  53 

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MARCORSEPMAN 6210.5.

Chronological Listing of Significant Service Events:

950213:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

971031:	NJP for violation of UCMJ, Article 86: (2 Specs), Spec 1: Without authority, absent himself from 970826 to 970925 from building 620432 to wit: Golf Company, 2d Battalion, 4th Marines, 1st Marine Division, located at Camp Pendleton, California, Spec 2: Without authority, absent himself from 970930 to 971024 from building 620432 to wit: Golf Company, 2d Battalion, 4th Marines, 1st Marine Division, located at Camp Pendleton, California.
Awarded forfeiture of $500.00 per month for 2 months, restriction and 
extra duties for 45 days, reduction to E-2.  Not appealed.

980116:	NAVDRUGLAB [SAN DIEGO, CA], reported applicant’s urine sample, received 980109, tested positive for [THC].

980302:	Summary Court Martial for violation of the UCMJ, Article 112a: Wrongfully use marijuana.
	Sentence: Confinement for 30 days, forfeiture of $517.00 pay per month for 1 month, reduction to E-1.
	CA (980303) Sentence approved and order executed.

980318:	NAVDRUGLAB [SAN DIEGO, CA], reported applicant’s urine sample, received 980318, tested positive for [THC].

980612:	Special Court Martial for violation of the UCMJ, Article 112a: Wrongfully of use marijuana.
	Sentence: Confinement for 35 days, forfeiture of $617.00 pay per month for 1 month.
	CA (980827) Sentence approved and order executed.

981022:	Applicant refused medical officer evaluations.

990524:	Counseled for deficiencies in performance and conduct.  [Flagrant and willful violation of Article 92 (Failure to Obey Order or Regulation) and 134 (Indecent Exposure) in which you did demean another Marine while aboard the USS Dubuque by standing over him and exposing yourself at him and having a photograph taken of the unprofessional conduct.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990602	NJP for violation of UCMJ, Article 92: Violate a lawful general order, to wit: Marine Corps Order 1700.28 dated 970618, Hazing, by wrongfully subjecting LCpl R_____ to a humiliating and demeaning act, violation of UCMJ, Article 134: Willfully and wrongfully expose in an indecent matter to public view his genitals towards LCpl R_____.
Awarded forfeiture of $400.00 per month for 2 months, restriction and 
extra duties for 45 days, reduction to E-2 (suspended for 6 months) .  Not appealed.

990617:	Counseled for deficiencies in performance and conduct.  [Illegal drug involvement; specifically, Marijuana use twice as indicated by NAVDRUGLAB SDIEGO LAB Number S9803115038 and S9801069117.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990713:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to drug abuse. The factual basis for this recommendation was your SPCM on 980612 for violation of article 112a, your SCM on 980302 for violation of article 112a, your NJP on 971030 for violation of article 86 x 2, your NJP on 990602 for violation of articles 92 and 134.

990713:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

990713:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. 

990810:	GCMCA [Commander, 1st Marine Division (REIN)] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse. 

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 990830 under other than honorable conditions for misconduct due to drug abuse (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 the applicant’s issue 1, the Board concurs that the applicant was discharged within one month of his EAS and that his immediate chain of command recommended his retention.  However, the Board found that the applicant did not serve honorably and did not warrant an honorable discharge.  The applicant had one NJP, one Summary Court Martial for illegal use of marijuana, and one Special Court Martial for a second illegal drug offense. The applicant understood the Marine Corps policy regarding the use of illegal drugs, yet he chose to ignore that policy.  Regardless of the closeness to his EAS, the applicant was properly discharged.  Relief denied.

The following is provided for the applicant’s edification.  The NDRB is authorized to consider 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.  However, there is no law or regulation that 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 be found to have existed during the period of enlistment in question.  No such error or injustice is evident in the applicant’s service record.   In determining whether a case merits a change based on post-service conduct, the NDRB considers the length of time since discharge, the applicant's record of community service, employment, conduct, educational achievements, and family relationships. The applicant's efforts need to be more encompassing than those provided.  The applicant should have produced evidence of documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs in order for consideration for clemency based on post-service conduct.  At this time the applicant has not provided sufficient documentation of good character and conduct.  Therefore no relief will be granted.  The applicant is reminded that he remains eligible for a personal appearance hearing provided that an application is received within 15 years from the date of discharge.

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 to 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.

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