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

ex-LCpl, USMC
Docket No. MD02-00142

Applicant’s Request

The application for discharge review, received 011022, 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 020701.  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-Drug abuse (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  I understand that involuntary ingestion was and is a common defense in these situations.  However, base on the research of this type of narcotic it is very feasible that this does happened from time to time.  Because of the evidence of my urinalysis, the only other defense that was taken into account was my word and character.  Evidently this wasn't enough at the time to be retained.  I have waited 8 years to request a upgrade to my discharge so that the panel can eradicate the notion that my reasons for a not guilty plea is to be retained and receive the various benefits with being discharge from the marines with an Honorable.  None of the benefits from and honorable can actually benefits me now at my current age and social standing.  I have already completed the required collage for my civilian employment, therefore there is no need for the GI bill, and I am also a homeowner so that in turn that eliminates my use for the VA benefits.  However, I did apply for a certificate and received one, but I never used it.  My main intent is to bring closer and truth to this record.  Once again, I did not knowingly ingest this drug.  I have done some research and found that this particular drug (LSD) has been added to punch and other drinks at fraternity parties and college social gatherings.  Police departments in several parts of the country say that this and other drugs that come in a liquid form are easily ingestion unknowingly and numerous people have reported waking up in frat houses with no clothes on, finding themselves in unfamiliar surroundings with unfamiliar people.  So the likely hood of involuntary ingestion is feasible and did happened to me.  I have no reallocation of voluntarily taking any drugs.  Drugs are in no way part of my character make-up.

2.  Base on my character references, you can see that these officers and NCO were not my friends but upper administration in my direct chain of command.  They not only spoke exceedingly high of my character before this innocent but also after.  Even after 8 years being discharged from the Marine Corps and having become reasonably successful in the civilian world, I still stand by my sworn testimony," I did not willfully take drugs." I also feel that base on the sworn testimony, character reference, and having less than 10 months left to serve, I should have been allowed to remain in the service and complete my time honorably.  To my regret and to my peers, this didn't happened.  Therefore I am requesting an upgrade in discharge status.  I am almost 30 years of age and I want bring closer to this incident that happened so long ago.  I was a poster marine that made some bad decisions with alcohol, but even after being told that I was being discharge my proficiency and conduct markings were still higher than average for 3rd battalion 9th marines Infantry Unit.

3.  I believe that my current civilian status is important to this issue.  Considering my character was the base for my defense in this case, I hope that it can lay some weight on the decision to my upgrade.  I am currently a Technical Computer Animator / Mechanical and Structural Designer for an International Gas and Oil Drilling Company, I also am a consultant for several internationally published magazines and sit on the "Autodesk Advisory Board of Education" for the state of Oklahoma.  I am married with 3 children and have had no arrest, convictions, tickets or misdemeanors in my 29 years of life.  I am also a mentor and do numerous public speaking that pertain to my current job descriptions.  I feel that an upgrade in my situation can add value to the Marine Corps, by allowing me to speak of my honorable service in the marines.  I truly believe that in doing so would allow me to show civilians what type of high caliber people that have come out of marines.

4.  During my discharge review board I notice that one of the members on the board was Lt. R_.  On page 11, 2 paragraph you will notice Lt. G_ made a statement about my proficiency and conduct markings that were assign to me by Lt. R_ while they were overseas.  I was under his direct command during 3/9's tour In Somalia.  I believe that this might be construed as a conflict in the judiciary process.  I was under the Instructions that the 5 member or 3 member panel was to consist of Individuals that were not of any relationship to the person being reviewed in the Board.

Documentation

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

Copy of DD Form 214
Twenty-one pages from applicant's service record
Business card
Picture of applicant and his family
Statement from applicant
Copy of applicant's resume'
Police record check dated November 21, 2001
Copy of driving record dated December 14, 2001
Copy of certificate of completion dated December 18, 1996
Copy of certificate of completion dated October 24, 1996
Copy of certificate of completion dated September 4, 1996
Copy of certificate of completion dated October 2, 1997
Copy of certificate of completion dated September 18, 1997
Copy of Star Training Institute transcript (2 pages)
Copy of student record from University of Phoenix
Copy of certificate from Tulsa Community College re: President's Honor Roll dated Spring 1999
Copy of certificate of recognition dated March 16, 1999
Character reference dated November 19, 2001 and business card
Character reference dated November 27, 2001
Character reference dated December 4, 2001
Letter of recommendation dated June 14, 1995
Character reference dated December 12, 2001
Credit report
One page from Oil & Gas Journal
Two pages from Enterprise, Spring 2000
Three posters and wall sized maps

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		891121 - 901001	COG

Period of Service Under Review:

Date of Enlistment:  901002		Date of Discharge:  931031

Length of Service (years, months, days):

	Active:    03  01  00
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  39

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (9)			Conduct:  4.2 (9)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR

Days of Unauthorized Absence:  None

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS /Misconduct-Drug abuse (administrative discharge board required but waived), authority:  MARCORSEPMAN Par. 6210.5.

Chronological Listing of Significant Service Events:

891120:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

920311:	Counseled for deficiencies in performance and conduct.  [Continued lack of integrity and failure to recognize higher authority at all times.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920821:	NAVDRUGLAB, San Diego, CA, reported applicant’s urine sample tested positive for LSD.

921008:	Applicant diagnosed as alcohol dependent, not physiologic.  Recommended for Level III treatment.  

921210:	NJP for violation of UCMJ, Article 112A:
Specification: Wrongfully used LSD on 23Jul92.
Awarded forfeiture of $440.00 per month for 2 months, restriction and extra duties for 45 days, reduction to PFC.  Appealed 930203.  Appeal denied 930211.

930312:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

930315:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

930316:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was applicant’s one NJP which evidenced illegal use of LSD, a controlled substance.  

930604:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

930921:	SJA review determined the case sufficient in law and fact.

931001:	GCMCA [Commander, 1st Marine Division (Rein), FMF] 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 931031 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).

Issues 1 and 2.  The Board found the applicant used illegal drugs.  Drug abuse warranted processing for separation, normally under other than honorable conditions.  The applicant’s performance prior to the drug abuse does not mitigate his use of illegal drugs. While he may feel that his drinking was a factor that contributed to his actions, the record clearly reflects his disregard for the requirements of military discipline.  While the applicant may not have willfully ingested the drug, the Board found no evidence to refute the inference that his drug use was wrongful [A]. The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions.  The discharge was proper and equitable.  Relief denied.

Issue 3.  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.  Documentation of community service and proof of his not using drugs, are examples of verifiable documents that should have been provided in addition to the documentation available to receive consideration for relief, based on post-service conduct.  The applicant did not provide sufficient documentation to warrant an upgrade to his discharge.  Relief denied.

Issue 4.  The Board found no inequity or impropriety in the fact that a member of his administrative discharge board was in the applicant’s chain of command on a prior occasion.  Relief on this issue is therefore denied.

The applicant 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 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 P1900.16D), effective 27 Jun 89 until 17 Aug 95. 

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