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

 ex-PFC, USMC
Docket No. MD01-01038

Applicant’s Request

The application for discharge review, received 010807, 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 020215.  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 (verbatim)

1.  When I left the Marine Corps I was told that my discharge was going to be upgraded with in six months.  I still have not heard anything and it's been four years.
So far my life has been security.  I served America for three in a half years, and I've worked other security jobs for the past four years.  I guess you could say security is my calling.  I see my life at a dead stop because I can't pursue my second goal and that's to be a U.S.  Marshall.  I've made my first goal come true, being a Marine. My discharge is preventing my second goal from coming true.  I would love nothing more than to serve my great Nation once again.  The reason I became a Marine was to serve my county and protect my people.  I would lay my life down to save someone else's.  All I need is a second chance to prove myself. My discharge was based on one instant in my life.  It's hard to get along in this world today and with the one black mark on my record makes it harder.  I need back up. When I was in Security Forces I didn't mind the long hours or the long days.  I knew I was doing what I loved to do, protecting my country and the people in it. The thing I understood while I was in the military was things took teamwork.  Life is based on teamwork; everyone has his or her own part to make this country run.  Getting that second chance and being on the American team again would be a great honor. I want to jump my hurdle and do what life has intended for me. I'm willing to place my future in your hands, so maybe I can get the help I needed to reach my second goal in life, I want to become the protector I was born to be.

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(J)		930805 - 940705	COG

Period of Service Under Review:

Date of Enlistment:  940706		Date of Discharge:  970922

Length of Service (years, months, days):

	Active:    03  02  17
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  38

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  No marks found	Conduct:  No marks found

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, GCM

Days of Unauthorized Absence:  43

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:

930804:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

950706:	Counseled for deficiencies in performance and conduct.  Financial irresponsibility and mismanagement.  Specifically, negligent failure to maintain payments of a motorcycle you purchased and buying a new cae while not having settled for insurance claim on the above mentioned motorcycle.  Your continued neglect to pay your bills and your careless lack of initiative to seek help is simply unsatisfactory.  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970804:	NJP for violation of UCMJ, Article 86:
Specification: Unauthorized absence from 1300, 17Jun97 to 0030, 31Jul97 (43 days).
Violation of UCMJ, Article 112A:
Specification: Admit to the use of a controlled substance while in a unauthorized absence status on 1Aug97.
Awarded forfeiture of $575.00 per month for 2 months, restriction for 60 days, reduction to PFC.  Not appealed.

970804:	Counseled for deficiencies in performance and conduct.  Violation of Article 86 of the UCMJ in that I was UA from 970617-970730.  Violation of Article 112A of the UCMJ in that I admitted to wrongful use of a controlled substance.  Since returning from UA status my appearance, attitude, and conduct have been unsatisfactory.  It is the opinion of my command that I am avoiding the unit's deployment to Okinawa and that my decision to desert, to use drugs, and actions since returning to the BN support this.  The specifics of my actions since returning are documented in my Platoon Commanders statement of service, but its basic summary is that my inability to honor my commitment to the USMC and my efforts to evade deployment are cowardly and a disgrace to the uniform.  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970811:	Applicant refused medical officer's evaluation for drug addiction.

970808:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

970811:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

970813:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was battalion nonjudicial punishment that evidenced your illegal use of drugs.

970912:	SJA review determined the case sufficient in law and fact.

970916:	GCMCA, Commanding General, 1st Marine Division (Rein), 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 970922 under other than honorable conditions for misconduct due to drug abuse (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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 (C and D).

Issue 1.  The applicant’s asserts that he was told his discharge would be upgraded six months after discharge.  This issue is without merit.  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 any of these documents.  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.  The applicant was briefed on the purpose and scope of the NDRB’s authority on 970811.  Relief is not warranted

The applicant requested a change in the discharge for employment opportunities, specifically, employment as a U.S. Marshall.  The NDRB will not change a discharge unless there was an impropriety or inequity in the discharge process or characterization assigned.  The applicant’s limited employment opportunities due to the discharge received do not sufficiently demonstrate an impropriety or inequity.  Relief is 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.  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.  

C.  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.

D.  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