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

 ex-Pvt, USMC
Docket No. MD01-00035

Applicant’s Request

The application for discharge review, received 001004, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested a personal appearance hearing discharge review in the Washington National Capital Region.  The applicant designated the American Legion as his representative on the DD Form 293.  In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010822.  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:  BAD CONDUCT DISCHARGE/ As a result of a courts-martial (SPCM) – Other, authority: MARCORSEPMAN Par. 1105.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  I was promised rehabilitation and never received it, therefore, my problem continued.  I later test positive again and again was not given treatment.  There was no Drug & Alcohol personnel on base.

2.  (Equity Issue) Pursuant to 10 USC 874(b) (UCMJ, Article 74) and in accordance with SECNAVINST 5420.174C, enclosure (1), paragraphs 2.24 and 9.3, this former member requests the Board's clemency relief with up-grade to his characterization of service to under honorable conditions on the basis of his post-service conduct.

Documentation

Temporary Service and Dental Records were reviewed, as the Board was unable to obtain a copy of the Medical Record from the record center and the applicant.  Applicant did not provide any post-service documentation for the Board to consider, but did provide the following:

Certification of Military Service (Nov 9, 1982 until Mar 7, 1988)

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		821108 - 880307	HON
	Inactive: USMCR(J)		821028 - 821107	COG
USMCR	780302 - 821027	COG (did serve on acdutra attend drills, acdu during this contract.)

Period of Service Under Review:

APPLICANT'S temporary service record incomplete.

Date of Enlistment:  880308		Date of Discharge:  920513 (Applicant states discharge date as 91-05-21 but he was placed on appellate leave that date).

Length of Service (years, months, days):

	Active:    04  02  06 (Doesn't exclude appellate leave period).
	Inactive:  None

Age at Entry:  27			Years Contracted:  6

Education Level:  12			AFQT:  Not available

Highest Rank:  Sgt

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.6 (1)			Conduct:  2.9 (1)

Military Decorations:  None

Unit/Campaign/Service Awards:  COC, MM, LOA(2), LOR 

Days of Unauthorized Absence:  NONE 

Character, Narrative Reason, and Authority of Discharge (at time of issuance) (DD214 NOT IN SERVICE RECORD):

BAD CONDUCT DISCHARGE/As a result of a courts-martial (SPCM) - Other, authority:  MARCORSEPMAN Par. 1105.

Chronological Listing of Significant Service Events:

900429:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 112a.
	Specification:  on or before 27 Nov 89 wrongfully use a controlled substance, to wit:  Cocaine.
	Charge II:  violation of the UCMJ, Article 134.
	Specification:  did, at CamSmh, on  or about 11 Jan 90, with intent to deceive, make to CID investigator Sgt V_B_, an official statement, to wit:  "I deny ever using cocaine", which statement was totally false and was then known by the said Sgt M_ (Applicant) to be so false.
	Finding:  to Charge I and Charge II and the specifications thereunder, guilty.
	Sentence:  Forfeiture of $747.00 pay per month for 1 month, reduced to E-4.
	CA action 900611:  Sentence approved and ordered executed.

901105:	Counseled for deficiencies in performance and conduct [wrongful use of controlled substance, i.e., cocaine].  Necessary corrective actions explained as follows:  1 Dec 90 you will be placed on the USP as a result of this illegal drug involvement, will be tested twice a week for 4 weeks, if at end of surveillance period, there are not drugs found in urine sample you will be disenrolled from this program.  Sources of assistance provided, disciplinary and discharge warning issued.

901212:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 112a:  Wrongfully use a controlled substance, to wit:  cocaine
	Findings:  to Charge I and specification thereunder, guilty.  
Sentence:  Reduction to E-1, and a bad conduct discharge.
	CA 910221:  Sentence approved and ordered executed except for the BCD.

910522:	Placed on involuntary appellate leave.

911127:	NC&PB denied clemency and restoration, but advised applicant must be afforded opportunity for thirty days inpatient substance abuse treatment at VA Medical Center (VAMC) prior to discharge.

920123:	NMCCMR:  Affirmed findings and sentence.

920513:	SSPCMO:  Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed.  Commanding Officer, Separations Company, Headquarters and Support Battalion, Marine Corps Base, Camp Pendleton was directed to offer the applicant an opportunity for 30 days inpatient substance abuse treatment at a VAMC and to discharge the applicant with a bad conduct discharge after completion of the inpatient treatment or waiver thereof.  [Date of discharge as 13 May 92, due to the SSPCMO, is not verified because of incomplete records].

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 920513 with a bad conduct discharge which was the sentence adjudged by a properly constituted special court martial that was determined to be legal and proper, and affirmed in the legal chain of review and executed (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).

Issue 1.  In response to the applicant’s issue, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts.  With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency (C, Part IV).  The applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  The applicant states he was not given rehabilitation between the dates of his two Court-Martial convictions for use of cocaine.  This argument was used as an assignment of error by the applicant’s defense after the second trial by Court-Martial.  The argument was rejected by the court, with the findings and sentence approved.  Relief denied. 

The applicant states he was not given rehabilitation treatment after his second conviction at a trial by Court-Martial for use of cocaine.  The NC&PB denied clemency and restoration, but advised applicant must be afforded opportunity for thirty days inpatient substance abuse treatment at VA Medical Center (VAMC) prior to discharge.  There is no record of whether or not the applicant received the treatment directed by the NC&PB, or if the applicant waived the opportunity for treatment.  Therefore the Board presumes regularity in the processing of the applicant’s discharge.  Relief will not be granted on this issue.

Issue 2.   The applicant provided no evidence of outstanding post service conduct. The applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the applicant’s enlistment.  Additionally, 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 civilian life, subsequent to leaving the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  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.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for clemency, based on post-service conduct.  The applicant did not provide sufficient documentation to warrant an upgrade to his discharge.  He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURTS-MARTIAL, 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 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 “afls10.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