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

ex-Pvt, USMC
Docket No. MD00-01091

Applicant’s Request

The application for discharge review, received 000926, 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/INVOL DIS (BOARD WAIVED (MISCONDUCT) DRUG ABUSE, authority: MARCORSEPMAN Par. 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  I am submitting this application to request discharge upgrade to honorable.  I have worked tirelessly over the past 5 years to accomplish my goals and become what I now am certain I want to be, a Firefighter/paramedic.  I am also certain that the discharge that I received from the U.S.M.C. will prevent me from making that possible.  I currently am a paid volunteer but I want to become full time/full paid.  I was discharged for marijuana use.  I had been an E-3 for 22mos. and most of my friends had already been promoted.  I had a prefect record at this time and excellent physical fitness and rifle range scores.  So after Christmas leave me and another guy made the stupidest mistake of our lives.  Come to find out I went U.A. on 1/9/95 and I had orders to be promoted on or around 1/1/95.  No one told me anything about these orders.  If I had been promoted or at least told of pending promotion, I am certain I never would have made the terrible decision that I did.  I am beginning paramedic school in january and that will last 12 mos.  I am very proud of the years I spent in the Corps and everyone who knows me knows I am a former Marine.  I feel that I gave excellent service before I threw it away and I beg you gentlemen, please upgrade my discharge and let me have the chance to serve my community as a Fireparamedic.  It has been 5 years, I am 26 years old and I am ready take the next step but it will be nearly impossible without you.  I am truly sorry for the trouble that I have caused and if I could turn back time I would do things differently.  Thank you for hearing me out.

Documentation

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

Character reference from instructor at American River College dated October 12, 1998
College transcript dated July 10, 2000
Excerpt re New Additions for Battalion 5
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		 920522 - 921025	COG

Period of Service Under Review:

Date of Enlistment:  921026		Date of Discharge:  950818

Length of Service (years, months, days):

	Active:    02  09  23
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  66

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0 (7)			Conduct:  4.0 (7)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, AFEM, SSDR, UNM

Days of Unauthorized Absence:  52 

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

UNDER OTHER THAN HONORABLE/INVOL DIS (BOARD WAIVED) (MISCONDUCT) DRUG ABUSE, authority:  MARCORSEPMAN Par. 6210.5.

Chronological Listing of Significant Service Events:

920521:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

950511:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 86.
	Specification: Unauthorized absence from 0730, 9Jan95 until 1415, 2Mar95 (52 days/surrendered).
	Charge II: violation of the UCMJ, Article 112A:
	Specification: Wrongfully use marijuana, a controlled substance on 2Mar95.
	Finding:  to Charge I and II the specifications thereunder, guilty.
	Sentence: Forfeiture of $569.00, confinement for 30 days, reduction to Pvt.
	CA action 950519:  Sentence approved and ordered executed.

950605:	Counseled for deficiencies in performance and conduct.  [Illegal use of a controlled substance and incidents of unauthorized absence.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950607:	Applicant refused to be evaluated.  Applicant declined treatment at a VA center.
 
950620:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

950620:	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.

950620:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was your summary court-martial which evidences your illegal use of a controlled substance. 

950731:	SJA review determined the case sufficient in law and fact.

950802:	GCMCA [Commanding General, 1st Marine Division (Rein), FMF] 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 950818 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).

The applicant introduced no decisional issues for consideration by the Board.

When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as honorable.  Characterization of service as under 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 a Summary Court-Martial for violations of the Uniform Code of Military Justice (UCMJ).  The applicant’s misconduct included unauthorized absence, and illegal use of a controlled substance (marijuana), offenses for which a punitive discharge could be awarded.  An upgrade to honorable would be inappropriate.  Relief is therefore denied.

The NDRB recognizes that serving in the Marine Corps is very challenging.  
Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country.  It must be noted that most Marines 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.  While the NDRB respects the fact that the applicant tried, his service is equitably characterized as being performed under other than honorable conditions. Relief is not warranted.

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. Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  The applicant provided a character reference dated October, 1998 and a transcript from American River College with a 3.56 GPA.  While the Board applauds the applicant's efforts to date, they need to be more encompassing than those provided.  The applicant should have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs in order for consideration for upgrade 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.  Representation at a personal hearing is not mandatory, but is strongly recommended.  This representation need not be a lawyer, but may be any person of stature and good standing in the community including the various service organizations.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210, Misconduct, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 27 Jun 89 until 17 Aug 95. 

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.

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