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

 ex-Pvt, USMC
Docket No. MD00-00990

Applicant’s Request

The application for discharge review, received 000818, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant listed the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010215.  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.  (Equity Issue) His violations of the UCMJ notwithstanding, this former member opines that his overall service record warrants discharge under honorable conditions.

2.  (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.

Documentation

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

Job/character reference dated July 25, 2000
Copy of criminal record check dated July 25, 2000

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		931201 - 940814	COG

Period of Service Under Review:

Date of Enlistment:  940815			Date of Discharge:  980814

Length of Service (years, months, days):

	Active:    04  00  00
	Inactive:  None

Age at Entry:  17 Parental Consent 		Years Contracted:  4

Education Level:  12				AFQT:  50

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages 

Proficiency:  4.4 (11)			Conduct:  4.1 (11)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, MM, SSDR (2)

Days of Unauthorized Absence:  None

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:

931120:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

960514:	Counseled for deficiencies in performance and conduct.  [Driving and judgment.  Operating a motor vehicle in a reckless manner by excessive speed on board Camp Schwab, can result in serious injuries or death to innocent by standers, passengers, and to yourself.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

961219:	NJP for violation of UCMJ, Article 123 (5 specs):
Specifications 1-5: Uttered five worthless checks between 15Jul96 and 1Aug96
Violation of UCMJ, Article 134 (7 specs):
Specifications 1-7: Failed to pay AAFES, telephone, etc between 3Jun96 and 27Aug96 in Okinawa, Japan.
Awarded forfeiture of $490.00 per month for 2 months, restriction for 45 days, reduced to PFC.  Reduction to PFC to take effect 1Mar97.  Forfeiture suspended for 6 months.  Not appealed.

970819:	Counseled for deficiencies in performance and conduct.  [Inability to demonstrate financial maturity and responsibility.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

971103:	NAVDRUGLAB [San Diego, CA], reported applicant’s urine sample, received 971024, tested positive for THC.

971206:	NJP for violation of UCMJ, Article 112A:
Specification: Wrongfully use a controlled substance.
Awarded forfeiture of $450.00 per month for 2 months, restriction and extra duties for 45 days, reduction to Pvt.  Not appealed.

971229:	Counseled for deficiencies in performance and conduct.  [Wrongful use of a controlled substance.  Failure to demonstrate sound judgment and maturity.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980331:	Substance Abuse evaluation: No substantial information which supports a pattern of drug or alcohol abuse.

980608:	Applicant refused medical officer evaluation.

980707:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

980707:	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.

980707:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was NAVDRUGLAB San Diego, CA message 032053z Nov97, which reported applicant’s urine sample, received 971024, tested positive for THC.

980729:	SJA review determined the case sufficient in law and fact.

980731:	GCMCA [Commanding General, 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 980814 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 disagrees with his assertion that his overall service record warrants an honorable discharge.  When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as honorable.  Under other than honorable conditions is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The applicant’s service was marred by award of nonjudicial punishment (NJP) for offenses triable by court-martial on two occasions and adverse counseling entries on seven occasions.  The applicant’s misconduct included violations of Articles 123a, uttering worthless checks, 112a wrongful use of controlled substance, 86 unauthorized absence, 92 disobedience of a lawful order, and 134, failure to pay legal debts.  The applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful disobedience of the orders and directives which regulate good order and discipline in naval service, and falls short of that required for an honorable characterization of service.  An upgrade to honorable would be inappropriate.  Relief is therefore denied.

In the applicant’s second issue, equity as it pertains to post-service conduct, 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.  
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 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 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, Article 86, unauthorized absence for more than 30 days or Article 112a, unlawful use of a controlled substance.

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