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

ex-Pvt, USMC
Docket No. MD00-01039

Applicant’s Request

The application for discharge review, received 000907, 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 010329.  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.  In Oct. 1999 I submitted a request for review of my discharge.  I have not heard anything from the board.

Documentation

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

Copy of DD Form 214
Statement from applicant dated September 30, 2000

PART II - SUMMARY OF SERVICE

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

	Active:   USA			870728 - 950127	HON
	Inactive: USMCR(J)		950630 - 950801	COG

Period of Service Under Review:

Date of Enlistment:  950802		Date of Discharge:  990125

Length of Service (years, months, days):

	Active:    03  05  24
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  53

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  0.0 (0)			Conduct:  0.0 (0)

Military Decorations:  None

Unit/Campaign/Service Awards:  SASM w/2 Stars, KLM, AGCM w/1 Star, NDSM w/1 Star, ASR, AOSR w/2 Stars, MM, KLM, AAM w/1 Star

Days of Unauthorized Absence:  24 

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:

950629:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

971229:	NAVDRUGLAB, San Diego, CA, reported applicant’s urine sample, tested positive for marijuana. 

980211:	NJP for violation of UCMJ, Article 92:
Specification: Disobeyed SECNAVINST 5300.26b to wit: created an intimidating, hostile, or offensive working environment towards a LCpl on 1920, 16Jan98.
Violation of UCMJ, Article 117:
Specification: Wrongfully use provoking words when being asked to leave the room by LCpl on 1920, 16Jan9, to wit: by saying "fuck no" and calling the LCpl a "fucking bitch".
Awarded forfeiture of $519.00 per month for 2 months, restriction and extra duties for 45 days, reduction to PFC..  Not appealed.

980327:	Applicant informed eligible but not recommended for promotion to Corporal for the April/May/June period because of misconduct which resulted in NJP.
 
980602:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 112A:
	Specification: Wrongfully use marijuana on 16Dec97.
	Findings:  to Charge I and specification thereunder, guilty.  
	Sentence: Fine of $617.00, confinement for 30 days, reduction to Pvt.
	CA 980729:  Sentence approved and ordered executed.

980602:	To confinement.

980626:	From confinement, to duty.

980630:	Applicant refused medial evaluation.  

980724:	Counseled for deficiencies in performance and conduct.  [Exhibited poor judgment in decision concerning the use of illegal drugs (marijuana).]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

981014:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 92.
	Specification: Disrespectful in language and deportment toward a NCO.
	Charge II: violation of the UCMJ, Article 109:
	Specification: Recklessly damage a fence, the property of the United States government, by striking it with his car on 26Sep98.
	Charge III: violation of the UCMJ, Article 111:
	Specification 1: Physically control a vehicle while the alcohol concentration in his breath was .10 grams of alcohol per 210 liters of breath or greater on 26Sep98.
	Specification 2: Physically control a vehicle while drunk on 26Sep98.
	Charge IV: violation of the UCMJ, Article 128:
	Specification: Unlawfully push Lance Corporal into a concrete post with his hands and arms.
Finding: to Charge I, II, III, and IV and the specification thereunder, guilty.
	Sentence:  Forfeiture of $617.00, confinement for 12 days, restriction for 30 days.
	CA action 981014: Sentence approved and ordered executed.

981030:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and commission of a serious offense.  Applicant refused to sign.

981030:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.  Applicant refused to sign.

981124:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was drug abuse, an incident of sexual harassment and a conviction for DUI.

981221:	SJA review determined the case sufficient in law and fact.

981221:	GCMCA [Commanding General, 1 Marine Expeditionary Force] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

990107:	Counseled for deficiencies in performance and conduct.  [Assault, drunken operation of a vehicle.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 990125 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).

Relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts.  With respect to a discharge or dismissal adjudged by a court-martial case tried under the Uniform Code of Military Justice, the action of the NDRB extends only to a change in the discharge or dismissal for purpose of clemency. (B, art IV) 
The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (D).  However, 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.  No such error or injustice is evident in the applicant’s service record.  Relief denied.

The Board disagrees with the applicant’s 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, by a Summary Court-Martial, by a Special Court-Martial, and by adverse counseling entries on multiple occasions.  The applicant’s misconduct included violations of Articles: 92, disobeying a lawful order; 109, damage of government property;  111, driving a vehicle while drunk; 112a, illegal use of unlawful substances (THC); 117, wrongful use of provoking words; 128, physical assault.  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.  No other characterization would be so accurate a description of the applicant’s behavior in service as Misconduct.  The grievous offenses committed by the applicant on active duty could have been appropriately rewarded by a punitive discharge.  An upgrade to honorable would be undeserved and inappropriate.  

Further, an upgrade of this applicant’s discharge for misconduct would be an affront to the Marines who serve honorably and well and therefore earn honorable discharges.   In fairness to those Marines, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due.  Relief is therefore denied.

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, Article 112a, wrongful 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