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

 ex-PVT, USMC
Docket No. MD02-00066

Applicant’s Request

The application for discharge review, received 011002, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested a personal appearance hearing discharge review before the Board in the Washington National Capital Region.  The applicant did not list any representative on the DD Form 293.  In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) conducts a documentary review prior to any personal appearance hearing. 

Decision

A documentary discharge review was conducted in Washington, D.C. on 020529.  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.  Dear Sirs or Mams, I R___ W. R___ am asking for this review for reasons not to make a case that I was innocent in my involvement with drugs at the end of my enlistment.  I am writing this because in the last 5 years I have changed my life for the better and have felt the punishments for having this type of discharge.  I do however think that I did serve my country well although I didn't stay out of illegal involvement on my down time on base.  I also would like to at least gain acceptance in the Reserves of my choice.  Thank you for taking the time in looking at my case.  

Documentation

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

Copies of DD Form 214 (2)
Letter in Response from Applicant
Employment Reference Letters (3)
Copies of Letters of Appreciation (2)
Character Reference Letter from Mother in Law

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		920521 - 920526	COG

Period of Service Under Review:

Date of Enlistment:  920527		Date of Discharge:  960214

Length of Service (years, months, days):

	Active:    03  07  23
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  37

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (9)			Conduct:  4.0 (9)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Marksman Badge, NDSM, 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:

920520:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

930503:	Counseled for deficiencies in performance and conduct.  [Specifically for wrongful consumption of alcoholic beverages while under the age of 21 which led to unacceptable behavior while intoxicated.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
930827:	Counseled for deficiencies in performance and conduct.  [Drinking underage, 930419].  Specific recommendations for corrective action are Level I program.  930607 assigned to Level I Treatment program, 930611 successfully completed Level.

940419:	Counseled for deficiencies in performance and conduct.  [Frequent involvement with alcohol, drunk and disorderly conduct, a DUI dtd 930922, and falsifying and official statement in regards to your broken jaw.  Alcohol abuse has been the basis of this period of misconduct therefore this command decided on Level III training (Rehab) vice punitive action for the incidents listed above.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950203:	NJP for violation of UCMJ, Article 128: Assault, to wit: SNM was being escorted out of bldg 1629 (E-Club), after provoking a fight, by E-Club manager Mr. C____, then SNM swung and attempted to strike Mr. C_____.
Awarded forfeiture of $238.00 per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

950209:	Director, Substance Abuse Counseling Center, Marine Corps Base Hawaii recommendation for discharge ICO LCpl R____ W. R___.  SNM is an Aftercare Treatment Failure due to lack of attendance.  SMN was dropped from weekly aftercare due to lack of participation in his own recovery.  SNM missed Aftercare since 940211.
      
951016:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 134 (2 Specifications), 
	Specification 1: Wrongful use of cocaine 950403, at Oahu, HI; Specification 2: Wrongfully possess cocaine 950403, at Oahu, HI.  
	Finding:  to Charge I and the specification 1 and 2 thereunder, guilty.
	Sentence:  Forfeiture of $569.00 pay per month for 1 month, CHL for 30 days, reduced to E-1.
	CA action 951025:  Sentence approved and ordered executed.

951207:	Counseled for deficiencies in performance and conduct.  [Illegal drug involvement; specifically, using and possessing cocaine.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

951215:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and drug abuse.

951215:	Applicant advised of his rights and having elected to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

951215:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and   drug abuse.  The factual basis for this recommendation was the respondent's misconduct as evidenced by wrongful use of cocaine, wrongful possession of cocaine, assault, drunk and disorderly conduct, driving under the influence, making a false official statement, and two instances of underage drinking.  

960125:	SJA review determined the case sufficient in law and fact.

960126:	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 960214 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 discharge was proper and equitable.  Relief denied.

 Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.
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 30 Jan 97. 

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 128, assault; and Article 134, wrongful use of cocaine.

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