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

ex-LCpl, USMC
Docket No. MD02-01204

Applicant’s Request

The application for discharge review, received 020819, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to "Convenience of the Government".  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 030522.  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.  Dear Discharge Review Board (DRB):

The following issues are the reasons I believe my discharge should upgraded to Honorable.  If you disagree, please explain in detail why you disagree.  The presumption of regularity that might normally permit you to assume that the service acted correctly in characterizing my service as less than honorable does not apply to my case because of the evidence I am submitting.

1.  While confined at the Marine Corp Base Brig in Camp Pendleton, my military appointed attorney, Captain A_, explained that my battalion commander resigned his decision to court-martial me, but decided to give me a S.I.L.T. (Separation in Lieu of Trial).  In accordance with the "administrative" nature of the separation, the narrative reason for discharge, as indicated on my DD-214, did not reflect such.  I was not Dishonorably discharged (DD) nor was I given a Bad Conduct Discharge (BCD).  My discharge was improperly identified.  My command did not follow regulations.

2.  I served over three years of active-duty service and it is disingenuous for me to receive a bad discharge.

3.  I was awarded honors distinguishing the type of service rendered in general military service and service specific to my military occupation as a Tactical Vehicle Operator, to include a "Good Conduct Medal."

4.  I have a record of meritorious acknowledgement and promotion.

5.  I maintained above average proficiency scores, amidst physical ailments for which I under went periodical physical therapy for.

6.  I enrolled in several academic programs with the Manne Corp Institute where I maintained an A average.

7.  My average conduct/ behavior ratings were pretty good throughout training phases and time in the fleet.

8.  Clemency is warranted because it is unjust for me to be continually afflicted with the ill circumstances an other than honorable discharge will impose.

9.  There were other acts of merit that went unrecorded in which with the assistance of one other Marine, risking our lives, we saved the life of a young man from a burning car set a blaze in the middle of active highway.  We never received or asked for recognition for what we did.  It was assumed that because the other Marine and I were returning from extra duty that we did not deserve recognition.  In a combat situation, such efforts are awarded prestigious medals of Honor.  But if you are one serving out disciplinary punishment and save a life, then that life saved is considered less important.

10.  My record of NJP's and one Court Martial denote only isolated, minor offenses.  Many of the charges were inflated and an inequitable amount of them were dropped.  It was common practice to remind me that I was there to protect the rights afforded to the people of this country, not to exercise them.  God given human rights were denied at that cost.

11.  Before going UA for only 18 days, I toke personal initiative to acquire professional help in dealing with psychological problems I was enduring.

12.  Financial problems weakened my ability to maintain motivation and a positive outlook at work.  I also sought professional help to deal with those issues that were only compounded upon being released from confinement.

13.  I faced racial discrimination

14.  I faced discrimination based on my sometimes disabling conditions.

15.  I was discriminated against because I came from the "New York City"

16.  I went to school for engineering prior to enlisting.  I studied hard to qualify for an MOS in that field.  I tested above average and qualified.  My original military contract was for that field and was later changed due to paper work errors made at the recruiting office.  I was promised that upon graduating from Basic training that the error would be corrected, but it never was.  I was assigned an MOS with no choice.  I tried to adjust my personal vision to accommodate the change.  It proved very difficult in the beginning.  I had to repeat courses at my MOS school.  Although I later developed high proficiency in my M.O.S., I never really got over my disappointment with the promises that were made.  It was a constant impediment to my efforts to maintain an optimistic attitude.  When I confided in some of my authorities my dismay, I was not taken seriously.  Discouragingly, I was regularly told to "suck it up."

17.  Consequently, because I had to repeat MOS training my original orders to be stationed overseas were changed to the west coast.  Later, when coming upon my third year of service I received orders to go overseas again.  My command abused their authority and over turned those orders so that I could be legally prosecuted.  There were no grounds in which to hold me.  I appealed many of the decisions.  For that I suffered much ridicule and was made a pariah of my unit.  Although, at times, some co-workers conferred words of encouragement, many were too scared to testify on my behalf for fear of consequences they witnessed me encounter.  My efforts were persevering in the beginning but, with the heightening of my medical condition, I became unable to sustain the energy necessary to defend my case by myself.  I was given a military attorney, but he offered no assistance and would not see me.  Nonetheless, I continued to defend my case.  Independently, I appealed to the Judge Advocate General.  My appeal letter was unofficially intercepted by my company.  They saw that I had taken effort to note the improper administrative action taken by the authorities charging me.  The letter was held and I was still charged and punished.  While serving my punishment, I still suffered undue harassment by authorities.  I felt victimized.  I suffered a mental disorientation I could not recover from.  Consequently, my decisions became rash and my behavior faulty.  After completing the majority of my punishment, an incident involving an authority, which I felt threatened my life, caused me to flea for my safety.  I went UA and after 18 days, partially recovering my import, I turned myself in to the proper authorities the day before Christmas and was imprisoned on Christmas.

(see attached copy of "Request for Clemency" to commanding officer that was intercepted and not honored)

18.  1 was being considered for discharge due to medical reasons but was unfairly denied.  Rather, I was harassed by my authorities regarding my health.  Ungrounded allegations were spread and my character was attack.  Charges were later dropped, but my reputation had been severely scared.

19.  1 am working and preparing to return to college in the Fall 2001 semester.

20.  I am proud of the sacrifices I have made for God, my family and this country.  I dedicated over three years of efficient service.  I would like my discharge to reflect that pride, efficiency and dedication.

Documentation

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

Applicant's request for clemency, dated August 9, 2000
Statement from Applicant, dated August 8, 2002

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		971002 - 971111	COG

Period of Service Under Review:

Date of Enlistment:  971112		Date of Discharge:  010227

Length of Service (years, months, days):

	Active:    03  02  16	(Does not exclude lost time/confinement)
	Inactive:  None

Age at Entry:  23			Years Contracted:  4

Education Level:  14 1/2		AFQT:  56

Highest Rank:  Cpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (8)			Conduct:  3.9 (8)

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM, MM (2), Letter of Appreciation

Days of Unauthorized Absence:  18

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:

970922:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

981015:	NJP for violation of UCMJ, Article 92:
Specification: Disobey lawful order issued by 1st Sgt to field day his room on 980928.
Violation of UCMJ, Article 115:
Specification: For the purpose of avoiding service as an enlisted person, refuse to work and train in accordance with MCO.
Violation of UCMJ, Article 86:
Specification: Fail to go at the time prescribed to appointed place of duty, to with: morning formation on 0715, 981007, Applicant did not show until 0832.
Awarded forfeiture of $242.00 per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

000803:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 91 (2 specs):
	Specification 1: Willfully disobey a lawful order from Sgt on 000505, to wit: to give him the radio.
	Specification 2: Willfully disobey a lawful order from Sgt Maj on 000505, to wit: to give him the radio.
	Finding: to Charge I and the specifications thereunder, guilty.
	Sentence:  Forfeiture 2/3 pay for one month, confinement for 1 month, reduction to Pvt.
	CA action (date unknown):  Sentence approved and ordered executed.  Confinement for 1 month suspended for 6 months.  No further information found in service record.  [Date extracted from clemency request letter dated 000809, provided as supporting documents.] 

001101:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 001026, tested positive for THC.

001109:	NJP for violation of UCMJ, Article 91 (2 specs):
Specification 1: Willfully disobey lawful order from Sergeant on 000505.
Specification 2: Willfully disobey lawful order from Sergeant Major on 000505.
Violation of UCMJ, Article 112A:
Specification: Wrongfully use marijuana on 001018.
Awarded forfeiture of $667.00 per month for 2 months, restriction and extra duties for 45 days, reduction to LCpl.  Not appealed.

001204:	Applicant refused medical officer's evaluation for drug abuse/dependence.  

010202:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

010202:	Applicant advised of his rights and having consulted 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.

010202:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was your documented drug abuse

001205:	Applicant violated Article 86 (unauthorized absence) and Article 92 (failure to obey order or regulation) by breaking restriction.

001223:	Applicant from unauthorized absence (18 days/surrendered).

011225:	Applicant placed in brig 

010201:	Applicant returned to full duty.

010425:	SJA review determined the case sufficient in law and fact.

010425:	GCMCA [Commander, 1st Force Service Support Group] 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 010227 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 1-12:  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.  While he may feel that his undocumented psychological and financial problems were a contributing factors, they do not mitigate the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the Marine Corps, demonstrating he was unsuitable for further service.  His service record is marred by award of non-judicial punishment (NJP) on two separate occasions and a summary court-martial, thus substantiating the misconduct for which he was separated.  Furthermore, the Board disagrees with the Applicant’s assertion that his overall service record warrants an honorable discharge. When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as honorable.  A characterization of service of under other than honorable conditions is warranted when the member’s conduct constitutes a significant departure of that expected of a Marine.  It must be noted that most Marines serve honorably and well and therefore earn honorable discharges.  In fairness to those Marines, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due.
Relief denied.  For the Applicant’s edification, Marines guilty of illegal drug use normally receive a discharge characterization of under other than honorable conditions.

Issue 13 –18, and 20:  Additionally, the record is void of any evidence to support a claim of discrimination or injustice.  The Applicant did not appeal any of his NJP’s, refused medical evaluation for drug dependence and after consulting with legal counsel, waived his right to contest the characterization of service and reason for discharge at an administrative hearing while being processed for discharge in 2001.  Under other than honorable conditions due to misconduct clearly describes the Applicant’s service in the Marine Corps.  Relief Denied.   

Issue 19:  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 any 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 P1900.16E), 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