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

ex-PFC, USMC
Docket No. MD01-00747

Applicant’s Request

The application for discharge review, received 010508, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  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.  I T___ J. C____ believe the discharge given to me was inaccurate.  I believe this because the date I popped on a pisstest was late Oct 1998 (Aprox) and was discharged Jan, 14 2000, during this period of time while it was pending I participated in the exercise Desert Fox and the operation took place in the Persian gulf over Dec of 1998 and carried out my duties as the only 3043 (Supply Administrative Clerk) attached to Fox Btry  2nd Bn 11th Marines on our deployment.  I obeyed all orders and bidding of my superiors as I was told, knowing I may be discharged, after my trial, confinement, and upon returning t the United States I promply took over our two billets in my supply section (2nd Bn	11th Mar.) as a PVT having no previous experience in either billet I looked forward to the task.  Two months after taking over the billets of Consolidated Memorandum Receipts (CMR) and Base property or Garrison property.  My section and I had an inspection by the SMAT Team and my billet received 100% on the (CMR) and 98% on the Garrison property accounts.  After the inspection I was not allowed due to my pending discharge, however the Btry CO allowed it to be by passed; the ability to qualify on the rifle range where I shot a 47 (Expert) and in the time I was waiting for my pending discharge reply I picked up PFC.  The time was coming for an answer on my discharge package, however it did not concern me.  I continued to be a hard charging marine, to learn from my superiors and to teach those marines of lesser rank while showing some of my superiors faster and more productive ways of working the two billets I was in charge of.  I believe today that no matter where I go or what I do the Marine Corp will always be a part of my life.  The skills and attributes I attained and strived so hard to achieve will guide me and show themselves in all of my actions and anywhere I work.  I think back on what caused my discharge and regret it every day and think what I might have become had I not made the mistake I did, what I could have taught others, and how I might have served my country with honors and pride beyond that which I had.  At present I T____ C____ am enrolled in college at the Minnesota West College Campus for Intro to business, micro economics, and western civilization II a total of 10 credits, I also hold a full time job at Texaco located at the corner of I-90 and Highway 60 Worthington, Mn.  I make $7.00 an hour and plan to remain there for the duration of my college career.  Long term plan: I plan to Major in Computers and Minor in business with some history backing.  Thank you for your time in reviewing my DD-Form 293 and I have confidence that whatever you choose will be the best choice.

Documentation

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

Copy of Commanding Officer Recommendation for Separation Letter
Copy of Letter of Recommendation from 2nd LT J____ H____
Copy of Reference Letter from SSGT C____ L. E____
Copy of Reference Letter from SGT R___ T. N____
Copy of Letter of Recommendation from NCOIC M.A. G_____

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		960725- 970120	COG

Period of Service Under Review:

Date of Enlistment:  970121		Date of Discharge:  000114

Length of Service (years, months, days):

	Active:    02  11  24
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  85

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.0 (1)			Conduct:  3.0 (1)

Military Decorations:  None

Unit/Campaign/Service Awards:  AFEM, SSDR

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:

960425:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

970701:	Counseled for deficiencies in performance and conduct.  [Your violation of Marine Corps regulations and North Carolina State Law by underage consumption of alcoholic beverages in the Camp Johnson E-Club on 970620].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970703:	NJP for violation of UCMJ, Article 92: Violation of BO1700.6H by underage consumption of alcoholic beverages.
Awarded forfeiture of $200.00 per month for 2 months (forfeiture of $100.00 per month for 1 month (suspended for 6 months), 20 days restriction to the limits of Sscol, MCSSS, MCB CamLej without suspension from duty (10 days restriction suspended for 6 months).  Not appealed.

970721:	Counseled for deficiencies in performance and conduct.  [Violation of UCMJ, article 128 assault, Specifically, on 970828 you and your fellow marine from HQ Battery, 1STBN 11THMAR unlawfully assaulted each other with fist an caused bodily harm to each other].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

981104:	NAVDRUGLAB [SAN DIEGO, CA], reported applicant’s urine sample, received 981030, tested positive for [Amphetamine/Methamphetamine].

990416:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 112a: Illegal use of Methamphetamines, Amphetamines.
	Finding:  to Charge I and the specification thereunder, guilty.
	Sentence:  Confinement for 1 month, forfeiture of $591.00 pay per month for 1 month, reduced to E-1.
	CA action 990416:  Sentence approved and ordered executed.

990719:	Commanding Officer, Headquarter Battery, 2d Battalion, 11th Marine recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse

990728:	Refusal of Medical Officer's Evaluation.

990729:	Battery First Sergeant recommendation for administrative separation. 

990907:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

990907:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except, in lieu of a hearing, include written statements in rebuttal to this proposed separation, and to obtain copies of the documents used to support the basis for the separation.

9909xx:	Commanding Officer, 2d Battalion, 11th Marine recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was your positive drug urinalysis as documented on the MDS message dated 042249Z NOV 98 from NAVDRUGLAB.

991223:	GCMCA [Commanding General, 1st MARDIV] 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 000114 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 found that no specific time limits exists between the commission of an offense and the initiation and completion of administrative separation proceedings. Under other than 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 award of nonjudicial punishment (NJP) for offenses triable by court-martial on one occasion and a conviction at a summary court-martial for use of illegal drugs on another occasion.  The applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful disobedience of the orders and directives which regulate good order and discipline in naval service, and falls short of that required for an honorable characterization of service.  An upgrade would be inappropriate.  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 should have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities in order for consideration for clemency 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.  

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