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

 ex-LCpl, USMC
Docket No. MD02-00977

Applicant’s Request

The application for discharge review, received 020625, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a personal appearance hearing before the board in the Washington National Capital Region.  The Applicant listed the American Legion as the representative on the DD Form 293.  In the acknowledgement letter to the Applicant, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030515.  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/INVOL DIS (BOARD WAIVED) (MISCONDUCT) DRUG ABUSE, authority: MARCORSEPMAN Par. 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  (Equity Issue) This former member requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.

Documentation

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

Applicant's DD Form 214 (2 copies)
Statement from Applicant dated May 29, 2002
Character reference dated March 16, 2002 (2 copies)
Certificate of appreciation dated January 15, 2002
Character reference dated April 16, 2001 (3 copies)
Character reference dated March 25, 2001 (2 copies)
Employment letter, undated (3 copies)
Letter of recommendation dated August 18, 1995 (2 copies)
Character reference, undated
Letter of recommendation, undated
Letter of Appreciation dated January 21, 1991
Letter of exemplary conduct and performance of troops in Cape Domingo dated November 5, 1990 (2 copies)
Thank you letter dated November 2, 1992
Letter of recommendation, undated
Letter of appreciation dated April 14, 1994
Character reference, undated
Criminal record check dated August 1, 2002

PART II - SUMMARY OF SERVICE

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

	Inactive: USMCR(J)		880829 - 880913	COG
	Active:   USMC		880914 - 920709	HON

Period of Service Under Review:

Date of Enlistment:  920710		Date of Discharge:  950124

Length of Service (years, months, days):

	Active:    02  06  15
	Inactive:  None

Age at Entry:  27			Years Contracted:  4

Education Level:  12			AFQT:  84

Highest Rank:  Sgt

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.5 (2)			Conduct:  2.5 (2)

Military Decorations:  None

Unit/Campaign/Service Awards:  Certificate of Commendation (3), AFEM, SSDR w/1*, Letter of Appreciation (3), UNM, MM, NDSM, SASM w/2*, GCM, NUC (4), KLM (4)

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE/INVOL DIS (BOARD WAIVED) (MISCONDUCT) DRUG ABUSE, authority:  MARCORSEPMAN Par. 6210.5.

Chronological Listing of Significant Service Events:

920710:	Applicant reenlisted for 4 years.

940708:	NJP for violation of UCMJ, Article 112a:
Specification 1: Wrongfully possess illegal steroids on 940621, a controlled substance.
Specification 2: Wrongfully use steroids on 940622.
Awarded forfeiture of $619.00 per month for 2 months, restriction for 60 days, reduction to Cpl.  Not appealed.

940802:	Medical evaluation for steroid abuse found the Applicant to be a steroid abuser.   

940914:	Counseled for deficiencies in performance and conduct.  [Having a keg of beer in his room and later on being drunk and disorderly.  Conduct of this nature is unbecoming of a marine NCO.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

941108:	Counseled for deficiencies in performance and conduct.  [Wrongfully possess anabolic steroids a control substance.  Conduct of this nature is unbecoming of a marine NCO.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

941114:	NJP for violation of UCMJ, Article 112a:
Specification: Wrongfully possess anabolic steroids on 1320, 941021.
Awarded forfeiture of $552.00 per month for 2 months, restriction and extra duties for 45 days, reduction to LCpl.  Forfeiture for 1 month suspended for 6 months.  Not appealed.

941129:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug possession and abuse.

941129:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights.  

941205:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug possession and abuse.  The factual basis for this recommendation was two NJP's for violation of Article 112a. 

941227:	SJA review determined the case sufficient in law and fact.

950104:	GCMCA [Commanding General, 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 950124 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).

A characterization of service of under other than honorable conditions is warranted when the member’s conduct constitutes a significant departure from that expected of a Marine.  The Applicant’s service was marred by award of nonjudicial punishment (NJP) on two separate occasions for wrongful possession of a controlled substance.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflect his disobedience of the orders and directives which regulate good order and discipline in the Marine Corps, and falls short of that required for an honorable characterization of service.  An upgrade to honorable would be inappropriate.  Relief denied.  However, the NDRB did note an administrative error on the original DD Form 214 and corrected it to reflect the Applicant’s previous four years of honorable service.

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, a positive employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence that the Applicant is living a drug free life style, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.   At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.  Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  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 P1900.16D), 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 “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