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

ex-Pvt, USMC
Docket No. MD02-01054

Applicant’s Request

The application for discharge review, received 020718, 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 030410.  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.  Post service clemency ( I was young and dumb, now paragon of community.)

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		930616 - 940606	COG

Period of Service Under Review:

Date of Enlistment:  940607		Date of Discharge:  980417

Length of Service (years, months, days):

	Active:    03  10  11
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  31

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.1 (14)		Conduct:  3.9 (14)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, MM (2)

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:

930615:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

941121:	NJP for violation of UCMJ, Article 86:
Specification: Absence from appointed place of duty on 1046, 941114.
Violation of UCMJ, Article 92:
Specification: Having knowledge of para 3b(3)(c) and 4(c) of Scol0 1050.3U, violated same by traveling to Peoria, IL on a 96-hr liberty from MCES, MCB, Camp Lejeune.
Awarded forfeiture of $100.00 per month for 1 month, correctional custody for 21 days.  Correctional custody suspended for 6 months.

941123:	Counseled for deficiencies in performance and conduct.  [Being absent from appointed place of duty and for exceeding the limits of a 96-hour liberty by traveling to Peoria, IL.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950518:	Vacate suspended correctional custody for 21 days awarded at CO's NJP dated 941121.

970603:	Counseled for deficiencies in performance and conduct.  [A negative and timely response to effective counseling (concerning wall locker inspections) conducted by the section, and for displaying a lackadaisical attitude towards responsibilities as a Marine and failure to display leadership skills.  Deficiencies in conduct and contempt for authority demonstrating poor judgment, lack of self discipline, professionalism and maturity. Specifically, due to the failure on 17 May 97 to follow orders given from a Staff NCO.  Failed four wall locker inspections between 970404-970517.   Did not pass the wall locker inspection until Applicant received a Charge Sheet and the Platoon Commander was notified…  Therefore, Applicant not recommended for promotion for the month of June 97.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  Applicant elected to make a statement.

970613:	Applicant declined the opportunity to make a statement.

971008:	NJP for violation of UCMJ, Article 91:
Specification: Disrespectful to Cpl by saying to him "Okay, just shut the F--- up then."
Awarded forfeiture of $259.00 per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

971202:	Applicant screened by the Alcohol Treatment Facility and found to be a drug abuser (isolated incident) and alcohol dependent.  Applicant recommended for treatment, but refused.

971212:	Applicant evaluated as a result of command referral.  Counselor's diagnostic impressions were drug abuse and alcohol dependence confirmed by a credentialed provider.

971223:	CID report CCN 15Nov97-24LE-06382-7NMA/F.  [Extracted from CG letter dated 980320.]

980126:	Battalion wide urinalysis conducted.  [Extracted from CO's letter dated 980302.]

980203:	NJP for violation of UCMJ, Article 91:
Specification 1: Poked Cpl in the head with his finger.
Violation of UCMJ, Article 112a (2 specs):
Specification 1: Wrongfully used a controlled [substance, to wit: marijuana].
Specification 2: Wrongfully possessed a controlled substance, to wit: marijuana.
Awarded forfeiture of $519.00 per month for 2 months, restriction and extra duties for 45 days, reduction to PFC.  Not appealed.

980205:	Message received with results of urinalysis.  Applicant positive for Tetrahydrocannabinol (THC).  [Extracted from CO's letter dated 980302.]

980209:	Counseled for deficiencies in performance and conduct.  Illegal drug involvement; specifically, possession and usage, identified through the Criminal Investigation Laboratory and urinalysis testing, DOD Drug Testing Laboratory number J9801904135 and the type of drug identified was tetrahydrocannabinol (THC).  Applicant advised that processing for administrative separation for misconduct is mandatory per MCO P1900.16.  Applicant elected to make a statement.

980217:	Applicant declined the opportunity to make a statement.

980223:	NJP for violation of UCMJ, Article 112a:
Specification: Wrongfully used a controlled substance on 980130, to wit: THC.
Awarded forfeiture of $463.00 per month for 2 months, restriction and extra duties for 45 days, reduction to Pvt.  Not appealed.

980302:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions and misconduct due to drug abuse.

980302:	Applicant advised of his rights and having elected not to consult 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.

980302:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions and misconduct due to drug abuse.  The factual basis for this recommendation was illegal drug use as evidenced by Navy Drug Lab Message R 052324Z Feb 98, CID Investigation 15Nov97 - 24LE-06382-7NMA/F and nonjudicial punishments of 980203 and 980223.

980319:	SJA review determined the case sufficient in law and fact.

980320:	GCMCA [Commanding General, II Marine Expeditionary Force, U.S. Marine Corps Forces, Atlantic] 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 980417 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).

Issue 1.  Drug abuse warranted processing for separation, normally under other than honorable conditions.  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 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, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that should have been provided to receive consideration for relief, based on post-service conduct.  The Applicant’s evidence of post-service conduct was found not to mitigate the offenses for which he was discharged.  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