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

ex-PVT, USMC
Docket No. MD01-00314

Applicant’s Request

The application for discharge review, received 010119, 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 010906.  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.  To whom it may concern, I was an 8th & I Infantry marine and a machine gunner with a spotless military record until the incident that happened in 97 after a long weekend in Tijuana Mexico, I believe that someone had somehow drugged my drink.  The next day I turned myself in to my squad leader for urinalysis, when the results came in I was stripped as team leader and given an unfair under other than honorable discharge.  It was a disgrace for an 8th & I marine team leader to be thrown out of the corps.  I would like some justice if nothing else.  My supporting evidence is Corporal R____ J. H____.  He was there that weekend and will support me fully.  I wish to join the police academy and my marine corps record is holding me back.  If you check my record I never had any incidents before this we were piss tested all of the time and I never failed, if you do not decide this decision was made in error will be forced to get a lawyer which with two kids I can not afford but the chance to get an honorable will be worth the money.

Documentation

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

Copies of DD Form 214 (2)

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		940825 - 941128	COG

Period of Service Under Review:

Date of Enlistment:  941129		Date of Discharge:  971022

Length of Service (years, months, days):

	Active:    02  10  23
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  50

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.5 (8)			Conduct:  3.0 (8)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, Rifle Marksman, GCM 

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:

940824:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

941129:	Initial enlistment contract documents admission of pre-service marijuana experimentation.  Enlistment waiver approved. 

970603:	Counseled for deficiencies in performance and conduct.  [Misconduct that resulted in my NJP on 970603 specifically violations of Articles 86 UA and 92 failure to obey a direct order] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970603:	NJP for violation of UCMJ, Article 86: Was UA 0630, 970512 until 0700, 970514, violation of the UCMJ, Article 86: Was UA 1000, on or about 970523, violation of the UCMJ, Article 92: At approximately 1000, on or about 970523, disobey a lawful order from 1ST Sgt W____ to wit: return to Bn Supply and draw his gear.
Awarded forfeiture of $258.00 per month for 1 months, restriction and 
extra duties for 14 days.  Not appealed.

970610:	Commanding Officer, Company B recommendation for discharge.

970612:	NJP for violation of UCMJ, Article 112a: Did wrongfully use a controlled substance.
Awarded forfeiture of $505.00 per month for 2 months, restriction and 
extra duties for 45 days, reduction to E-2.  Not appealed.

970731:	Counseled for deficiencies in performance and conduct:  Misconduct that resulted in NJP on 970731 specifically violations of Articles 92 failure to obey direct order.  Was informed that he will be processed for an administrative discharge as a result of his misconduct, advised that he will be held accountable for any further violations of the UCMJ, sources of assistance provided, disciplinary and discharge warning issued.

970731:	NJP for violation of UCMJ, Article 92: Break restriction on 970712, violation of the UCMJ, Article 92: Operate a POV onboard Campen while driving privileges were suspended.
Awarded forfeiture of $450.00 per month for 2 months, restriction and 
extra duties for 45 days, reduction to E-1.  Not appealed.

970818:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

970826:	Applicant refused medical evaluation for addictions.

970827:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was non-judicial punishment dated 970731 for use of amphetamine and methamphetamine.

UNDATED:	Weapons Platoon Commander recommendation for discharge.
 
970929:	Commanding Officer, 1st Marine concur with the recommendation that Private  R___ be discharged under other than honorable conditions by reason of misconduct due to drug abuse.

971010:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

971015:	SJA review determined the case sufficient in law and fact.

971016:	GCMCA [Commander, 1st Marine Division] 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 971022 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’s  issue 1  discussed the circumstances of his discharge.  The applicant asserted someone drugged his drink and had no incidents prior to his drug conviction.  The Board found the applicant’s issue without merit.  After careful review of the record the Board found the applicant had three separate NJP’s in his service record.  All the NJP’s were serious military offenses.  The applicant’s record demonstrates he was unwilling to abide by the basic standards of conduct expected of all Marines.  Relief is denied.

The NDRB is authorized to consider post-service factors in the re characterization of a discharge.  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.  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, may be considered by the NDRB.  The applicant failed to provide documentary evidence to demonstrate his sobriety, positive community service, employment history, and clean police record.  Relief is not warranted.

The applicant 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 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 112a, wrongful use of controlled substance and Article 92, Violation of a Lawful Order.

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