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

ex-Pvt, USMC
Docket No. MD01-00716

Applicant’s Request

The application for discharge review, received 010426, 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 011018.  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 The Personal Reviewing

I would like my discharge upgraded to Honorable because I wish to Pursue my Law Enforcement dream.  My father has just resently retired for the force after 29 years.  I have taken all classes including law enforcement, CPR, First Responder, and the CIVIL SERVICE EXAM scoring a "97%".  I would have no problem getting on the force if my discharge was upgraded. This has been a lifelong dream to walk in my fathers footsteps and I joined the Marine Corps to pursue that dream.  I was cut short when I got w/the wrong crowd.  I blame myself for my actions I took while enlisted but like every good man.  I have learned and paid for my mistakes.  It has been 4 years since I've been discharged and not one day goes by where I don't think about how ignorant and foolish I was.  I don't regret what I've done because It has made me even stronger today.  I have been sober and clean from marijuana since my discharge day.  I am married to a wonderful girl whom I met immediatly after coming home and I have two children.  There would be nothing in the world that would make me happier than to be able to tell my father that I am a Police Officer.  Like I said my discharge is the only thing standing in my way of a childhood dream.  Please consider my application carefully and Thank You for you time.

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR		940329 - 90423	ELS
   USMCR(J)		940523 - 940626	COG

Period of Service Under Review:

Date of Enlistment:  940627		Date of Discharge:  970416

Length of Service (years, months, days):

	Active:    02  09  20
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  52

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.7 (8)			Conduct:  3.0 (9)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, AFEM, NATO, Certificate of Commendation

Days of Unauthorized Absence:  111

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:

940326:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

951204:	NJP for violation of UCMJ, Article 128:
Specification: Assault Cpl by striking him in the back of the head on 2310, 7Nov95.
Awarded forfeiture of $232.00 per month for 1 month, extra duties for 14 days.  Forfeiture of $232.00 for 1 month suspended for 6 months.  No indication of appeal in service record.

960110:	Counseled for deficiencies in performance and conduct.  [Lack of financial responsibility.  Specifically, writing checks without sufficient funds].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960308:	NJP for violation of UCMJ, Article 134 (9 specs)
Specification: Make and utter 9 worthless checks totaling $1275.00.
Awarded forfeiture of $150.00 per month for 1 months, restriction and extra duties for 14 days.  Not appealed.

960325:	Vacate forfeiture of $232.00 for 1 month awarded at CO's NJP dated 4Dec95.

960607:	Counseled for deficiencies in performance and conduct.  [Uttering worthless checks].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960624:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 134.
	Specification 1: Make and utter worthless checks in the amount of $175.00.
	Specification 2: Make and utter worthless checks in the amount of $400.00.
	Finding: to Charge I and II the specifications thereunder, guilty.
	Sentence:  Forfeiture of $640.00, confinement for 30 days, reduced to PFC.
	CA action 960624:  Sentence approved and with the exception of forfeiture of $640.00 pay per month for 1 month is hereby ordered executed.  The forfeiture is suspended for a period of 6 months.

960824:	NJP for violation of UCMJ, Article 86:
Specification: Unauthorized absence from 0631, 29Jul96 to 0800, 8Aug96 (10 days/surrendered).
Awarded reduction to Pvt.  Not appealed.

960826:	Vacate forfeiture awarded at summary court-martial on 24Jun96.

960913:	NAVDRUGLAB, Jacksonville, FL, reported applicant’s urine sample, received 960904, tested positive for THC.

961010:	Medical evaluation for alcohol/drug abuse found the applicant to be a drug abuser, and alcohol dependent.  Recommend intensive outpatient treatment.  

961025:	NJP for violation of UCMJ, Article 112A:
Specification: Use marijuana from 1Sep96 to 10Sep96.
Awarded forfeiture of $435.00 per month for 2 months, restriction and extra duties for 45 days.  Not appealed.

961031:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

961031:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights.

961031:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was NJP held on 25 October 1996 and Director CDAC evaluation. 

970227:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 86.
	Specification: Unauthorized absence from 0631, 1Nov96 to 1430, 10Feb97 (101 days/surrendered).
	Charge II: violation of the UCMJ, Article 134:
	Specification: Break restriction.
	Finding: to Charge I and II and the specifications thereunder, guilty.
	Sentence:  Forfeiture of $594.00, confined for 30 days.
	CA action 970227: Sentence approved and ordered executed except for that portion of the punishment adjudging forfeiture of $594.00 for 1 month.

970227:	Applicant to confinement.

970326:	SJA review determined the case sufficient in law and fact.

970327:	Applicant refused rehabilitation treatment.

970331:	GCMCA [Commanding General, 2d Marine Division, U.S. Marine Corps Forces, Atlantic] 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 970416 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 applicant used illegal drugs. Drug abuse warranted processing for separation, normally under other than honorable conditions.  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