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

ex-Pvt, USMC
Docket No. MD01-01124

Applicant’s Request

The application for discharge review, received 010821, requested that the reason for the discharge be changed to 10 U.S.C. 1173 HARDSHIP DISCHARGE.  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 020417.  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 and narrative reason 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.  CHICAGO, IL DEC 1994 - HOT WATER TANK BUSTS AT HOME, I'M NOT THERE TO HELP.

2.  SAN DIEGO, CA DEC 1994 IN BOOT CAMP, IN MRP WITH PNEUMONIA FIRST TIME AWAY FROM HOME AT CHRISTMAS

3.  SAN DIEGO, CA MAR 1995 GRADUATED FROM BOOT CAMP, GIRLFRIEND PREGANT.

4.  SAN DIEGO, CA APR 19, 1995 OKLAHOMA CITY BOMBING

5.  SAN DIEGO, CA APR 1995 COMPLETED MARINE COMBAT TRAINING, WAS INFORMED THAT I COULD BE A 7212(STINGER GUNNER) INSTEAD OF AN AIR TRAFFIC CONTROLLER.

6.  EL PASO, TX MAY 1995 GIRLFRIEND HAS A MISCARRIAGE COUSIN HAVING PROBLEMS WITH HIS FAMILYAND _'S MOTHER.

7.  EL PASO, TX JUN 1995 WENT AWOL.

8.  HOUSTON TX AUG 1995 COUSIN DIED (DOC 2)

THESE ARE JUST SOME OF THE ISSUES THAT LEAD TO MY UNFORTUNATE DISCHARGE.  TRY TO TAKE INTO ACCOUNT THAT MY SUPERIORS WERE JUST DOING THEIR WHEN THEY HAD THE TASK OF WRITING UP THE REPORT FOR MY DISCHARGE.  BASICLY THEY SAY WHAT THEY HAD TO SAY TO GET ME OUT.  ALL OF THIS WAS DONE ON A HURRIED PASSAS YOU CAN SEE BY THE MANY CORRECTIONS ON MY DD-215(DOC 3).  IN BLOCK 27, MEMBER 4 OF THE DD-214 WOULD ALSO APPRECIATE A HIGHER RE-CODE SO I WOULD BE ELIGIBLE TO SERVE THESE UNITED STATES.  I AM DOING ALL OF THIS BECAUSE I WOULD LIKE TO ENTER THE ARMED FORCES.  P.S. THE RANK OF E-2 WOULD BE NICE AS WELL.

Documentation

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

Copy of DD Form 215
Copy of DD Form 214
Copy of cousin's order of service pamphlet
PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		940216 - 941127	COG

Period of Service Under Review:

Date of Enlistment:  941128		Date of Discharge:  951025

Length of Service (years, months, days):

	Active:    00  10  28
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  73

Highest Rank:  Pvt

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.6 (2)			Conduct:  3.6 (2)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  26

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:

940214:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

950727:	NJP for violation of UCMJ, Article 86:
Specification: Unauthorized absence from 0801, 11Jun95 to 1330, 7Jul95 (26 days/surrendered).
Awarded forfeiture of $250.00 per month for 2 months, restriction and extra duties for 30 days.  Not appealed.

950727:	Counseled for deficiencies in performance and conduct  [Your lack of discipline, failure to follow rules and regulations, your lack of responsibility and integrity].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950808:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was positive urinalysis confirmed by Army Form DD 2624 Feb 93 dated 26 July 95. 

950810:	Counseled for deficiencies in performance and conduct [Illegal drug involvement, specifically usage identified by Tripler Army Medical Center Forensic Toxicology Drug Testing Lab T9507-086 as positive THC].  Advised that processing for administrative separation is mandatory.

950810:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

950810:	Applicant advised of his rights and having consulted 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.

951003:	SJA review determined the case sufficient in law and fact.

951006:	GCMCA [Commander, Marine Corps Air Bases Western Area] 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 951025 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).

Issues 1-4, 6-8.  The Board found no indication the applicant was unfairly denied a request for a hardship discharge during his enlistment. The applicant used illegal drugs. Drug abuse warranted processing for separation, normally under other than honorable conditions.  No other narrative reason more clearly describes the circumstances surrounding the applicant’s processing for administrative separation. The discharge was proper and equitable.  Relief denied.

Issue 5.  The Board found no impropriety or inequity in the fact the applicant was assigned the MOS of a Stinger Gunner.  Relief denied.

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