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

 ex-PVT, USMC
Docket No. MD02-00601

Applicant’s Request

The application for discharge review, received 020402, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a documentary record discharge review.  The Applicant listed Veterans of Foreign Wars as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 021216.  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, as submitted

1.  To who it may concern my name is M_ L_. Back in 1999 I made a huge mistake and smoked marijuana I am sorry and am trying to get back into the Marine Corps so I may fight to but I can not do that until my discharge gets upgraded please help me.

2.  (VFW Issue) We concur with the Applicant's contention to upgrade his discharge.

Documentation

In addition to the service record (there was NO DISCHARGE PACKAGE AVAILABLE), the following additional documentation, submitted by the Applicant, was considered:

Copy of DD Form 214
Police Record Report

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		970912 - 980628	COG

Period of Service Under Review:

Date of Enlistment:  980629		Date of Discharge:  991013

Length of Service (years, months, days):

	Active:    01  03  15
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  35

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.8 (3)			Conduct:  3.8 (3)

Military Decorations:  None

Unit/Campaign/Service Awards:  Sharpshooter Rifle Badge

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:

981106:	Counseled for deficiencies in performance and conduct.  [Possessing alcohol in the barracks.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. 

981106:	NJP for violation of UCMJ, Article 92: At Co C, ITB, SOI, MCB, CamLej, 1600, 981030 having knowledge of ScolOP1500.3, violate the same by possessing alcohol in the barracks.
Awarded forfeiture of $216.00 pay per month for 1 month, restriction for 14 days, extra duties for 14 days (suspended for 6 months).  Not appealed.

981116:	Counseled for deficiencies in performance and conduct.  [Insubordinate conduct towards a NCO and communicating a threat.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

981117:	NJP for violation of UCMJ, Article 91: At Co C, ITB, SOI, MCB, CamLej, 1900, 981106, disrespectful in deportment toward Sgt N_, by pushing up his sleeves in a provocative manner; violation of UCMJ, Article 91: At Co C, ITB, SOI, MCB, CamLej, 1900, 981106, disrespectful to Sgt N_ by saying to him, "I'm not going to stand firewatch," or words to that effect.
Awarded CCU for 30 days, forfeiture of $463.00 pay per month for 2 months.  Not appealed.

981120:	Counseled for deficiencies in performance and conduct.  [NJP for violation of Article 113, UCMJ.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990830:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 90.
	Specification: On or about 990429, was disrespectful in language toward Cpl K_ E_, by saying "all you niggers are going down" and “fuck all you niggers," or words to that effect.  
Charge II: violation of the UCMJ, Article 112a. 
Specification: At an unknown location, on or about 990315, wrongfully use a controlled substance, marijuana. 
	Finding:  to Charge I and II, and the specification thereunder, guilty.
	Sentence:  Confinement for 30 days, forfeiture of $639.00 pay per month for 1 month, reduced to E-1.
	CA action 990830:  Sentence approved and ordered executed.

990917:	Applicant refused Medical Officer's Evaluation.
  
991007:	GCMCA [Commanding General, 1st Marine Division] 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 991013 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.  There is credible evidence in the record that the Applicant used illegal drugs.  Drug abuse warranted processing for separation, normally under other than honorable conditions.  Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity is evident 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.  Relief not warranted.

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.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 31 Jan 97 until 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 “afls14.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