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

ex-PVT, USMC
Docket No. MD01-00596

Applicant’s Request

The application for discharge review, received 010402, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant listed Disabled American Veterans as his 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.  The reason I am sending this application to the board for review is because I have a terminal sickness called acute lymphoblastic leukemia that is service connected.  Medical record transcript attached.

2.  After a review of the Former Service Member (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we continue to note the request of the appeallant of an upgrade of his Other Than Honorable discharge to that of Honorable.

A review of the record reflects that the FSM entered the military service on July 23, 1997, with participation in the United States Marine Corp, and was effectively discharge from said service on March 22, 2000, by reason of misconduct.

It is the FSM's desire to receive equitable relief of his current discharge, in concert with this request we ask that consideration be given to a General discharge.  As the record reflects the FSM performed his duties well, his behavior was somewhat lacking, and not sufficiently meritorious to warrant the appeallant's desire to upgrade to Honorable.

We believe the FSM's counsel at the time of discharge, talked the FSM into waiving his rights to an Administrative hearing.  This hearing would have provided the FSM with the availability of a General discharge.  We find this conduct of an arbitrary nature and sufficient grounds to allow for equitable relief.

We ask for the boards careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the applicant.

Documentation

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

Copies of DD Form 214 (2)
Copy of Discharge Diagnosis

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		970711 - 970722	COG

Period of Service Under Review:

Date of Enlistment:  970723		Date of Discharge:  000322

Length of Service (years, months, days):

	Active:    02  08  00
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  12			AFQT:  40

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0 (1)			Conduct:  3.6 (1) [Extracted from CO's msg dtd 990827]

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDRw1*, Rifle Marksmanship Badge 

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:

980620:	Counseled for deficiencies in performance and conduct.  [Continually arriving late to formation, inability to be at your appointed place of duty on time.  Showing blunt disregard toward the authority and orders given by your NCO's, section head, platoon sergeant, and officers].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980817:	NJP for violation of UCMJ, Article 86: UA (AWOL) from field day formation at 1630 on 980811.
Awarded forfeiture of $242.00 per month for 1 month (suspended for 3 months), restriction and extra duties for 7 days.  Not appealed.

980930:	NJP imposed and suspended 980817 for a period of 3 months is hereby vacated and the punishment ordered executed.

980930:	NJP for violation of UCMJ, Article 86: UA (AWOL) went from his guard with intent to abandon the same.
Awarded forfeiture of $242.00 per month for 1 month, restriction and extra duties for 14days.  Not appealed.

981117:	NJP for violation of UCMJ, Article 86: UA 0631, 981106 to 0600, 981109 from Fox Btry, BLT 1/6.
Awarded forfeiture of $428.00 per month for 2 months, restriction and extra duties for 45 days, reduction to E-1.  Not appealed.

990524:	Evaluation report for substance abuse diagnosis was drug abuse (Isolated Incident).

990607:	NJP for violation of UCMJ, Article 112A: Wrongfully use marijuana, a controlled substance.
Awarded forfeiture of $479.00 per month for 2 months (suspended for 6 months), restriction for 60 days.  Not appealed.

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

990805:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was respondent's drug use as confirmed through the NAVDRUGLAB message 172112z Nov 98. 

990816:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

990827:	Commanding Officer, 10TH Marines recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

991117:	NAVDRUGLAB [JACKSONVILLE FL], reported applicant’s urine sample, received 981110, tested positive for [THC].

991124:	Counseled for deficiencies in performance and conduct.  [Illegal drug involvement, marijuana usage identified through urinalysis confirmed by NAVDRUBLAB JACKSONVILLE, FL msg 172112Z Nov 98.  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

991202:	Withdrawal of request to an Administration Board.
 
000112:	SJA review determined the case sufficient in law and fact.

000114:	GCMCA [Commanding General] 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 000322 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).

Issue 1.  The Board has no authority to change the reason for discharge from or to a physical disability.  Relief denied.

Issue 2.  The applicant used illegal drugs.  Drug abuse warrants mandatory processing for separation, normally under other than honorable conditions.  The applicant originally requested a hearing before an administrative discharge board on 990816.  On 991117 the applicant's urine sample tested positive for drugs.   Two weeks later, the applicant withdrew his request for the administrative discharge board.  The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Additionally, there is no evidence that suggests the applicant’s decision to waive his right to an administrative discharge Board was not his own.  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 relief, 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 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 “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