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

 ex-LCpl, USMC
Docket No. MD02-01312

Applicant’s Request

The application for discharge review, received 020910, 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 030722.  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.  My discharge was based solely on being found guilty of Article 112a (Wrongful use of a controlled substance) at non-judicial punishment April 18, 2001, and so warrants an upgrade to honorable.  Prior to being subject of this non-judicial punishment, I had completed four years and eight months of service with very little incident.  I was found guilty at non-judicial punishment based solely on the results of a positive urinalysis.  The results indicated the level of LSD in my system was barely above the Department of Defense nanogram level.

2.  My record of non-judicial punishments indicates only isolated or minor offenses, and so warrants an upgrade to honorable.  I served in the Marine Corps for four years and eight months without any non-judicial punishments.  On April 6, 2001, I was found guilty of Article 86 (Unauthorized absence).  The period I was charged with a span of four days starting on Thursday May 30, 2001 and ending Sunday April 2, 2001.  At the time I was attending Transition Assistance Program (TAP/TAMP) classes all that week starting that Monday.  Thursday's class was a scheduled half-day and I had unintentionally overslept that day.  I used Friday to take care of administrative tasks since I was not expected at work or class that day.  Since I failed to pick up the required paperwork, the class informed my unit of the situation.  Later that Friday, I was informed by one of my fellow Marines I was in an UA status.  After that I immediately informed my chain of command of my whereabouts.  I was charged for Saturday and Sunday as well, since a Morning Report isn't prepared either of those days.  I was convicted of Article 112a April 18, 2001.  Neither non-judicial punishments were related.

3.  I was so close to finishing my tour that it was unfair to give me a bad discharge, and so warrants an upgrade to honorable.  My original expiration of active service was August 17, 2001, and I was administratively discharged May 11, 2001.  Due to the nature of my discharge there was eighty days of leave I had accrued that I never got to use or sell back when I was discharged.

4.  My record of promotions showed I was a good service member, and so warrants an upgrade to honorable.  I was promoted from Private (E-1) to Corporal (E-4) in a year and ten months after joining the Marine Corps, which is the minimum amount of time it takes to achieve such a rank.  I was promoted to Sergeant (E-5) after four yours and six months of service.

5.  My proficiency and conduct marks were mostly pretty good, and so warrants an upgrade to honorable.  Prior to being found guilty at non-judicial punishment my average proficiency and conduct marks were 4.6 / 4.6 on a 5-point scale.  Those marks indicate I was an excellent Marine in both my job performance and conduct according to guidelines set forth in proficiency and conduct marks.

6.  I received awards and decorations, and so warrants an upgrade to honorable.  In my four years and nine months of service I received (3) Sea Service Deployment ribbons, (2) Armed Forces Expeditionary medals, and (1) Good Conduct medal.  Prior to discharge I was awaiting awards for participating in Operation Bold Samaritan, which involved providing humanitarian assistance to East Timor, and Operation Determined Response, which involved supporting and assisting the crew of the USS Cole, along with providing security and assisting the investigations of other military and federal agencies after the USS Cole was attacked by terrorists of the coast of Yemen.  During that time I was attached to the Thirteenth Marie Expeditionary Unit Intelligence Section located aboard the USS Tarawa.  I was deployed to Camp Schwab, Okinawa for a year and participated in two six month long Western Pacific deployments.  In all cases I volunteered for these assignments.

7.  I received awards and decorations, and so warrants an upgrade to honorable.  In my period of service I received (1) Meritorious Mast, (2) Certificates of Commendation, (1) Certificate of Achievement, and (3) Letters of Appreciation.  As well, I held the highest security clearance classification available to members of the military, Top Secret Sensitive Compartmentalized Information.  My Certificate of Achievement was for graduating number one in Intelligence Analysis System Operators Course, a follow-up school to entry-level training.  I was the honor student for Expeditionary Warfare Intelligence Course and was the subject of an administrative message addressed to my Commanding Officer notifying him of my accomplishment.  I was voted honor student in that class by my fellow classmates.  I received letters of appreciation for performing community service in the United States as well as overseas.

8.  I believe I served my country honorably and faithfully during my period of service.  I was an accomplished and capable Marine, who performed all assignments and tasks given to me in an exemplary manner.  I suffered a huge lapse in judgment by putting myself in a situation where I could bring any discredit to myself, or the Marine Corps.  This one incident does not speak for my entire period of service; it is merely the unfortunate footnote.  My life goes on despite the nature of my discharge, however it isn't the same and many paths are now closed to me.  I have completed 28 credit hours of college with a 3.84 grade point average and was selected as, "Who's Who Among Students in American Junior Colleges." It is my hope to have my discharge upgraded to honorable so I can continue to pursue higher education and eventually serve the federal government of some manner in the future.

Documentation

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

Applicant's DD Form 214 (Member 1 and 4)
Request for military records, furnished August, 17, 2001
Official Military Personnel File (19 pages)
Page 12
Private First Class Promotion Warrant, dated February 1, 1997
Lance Corporal Promotion Warrant, dated October 1, 1997
Corporal Promotion Warrant, dated June 1, 1998
Sergeant Promotion Warrant, dated February 1, 2001
Meritorious Mast, dated December 1, 1997
Certificate of Commendation, dated May 1, 1998
Summary of Action for Certificate of Commendation
Certificate of Commendation, dated June 4, 1999
Certificate of Good Conduct, dated August 13, 1999
Certificate of Achievement, November 5, 1999
Letter of Appreciation, dated December 16, 1996
Letter of Appreciation, dated January 8, 1999
Letter of Appreciation, dated January 10, 1999
Expeditionary Warfare Intelligence Course with Honors Certificate, dated
October 19, 1998 to November 4, 1998
Administrative Message, dated November 10, 1998
North Harris Montgomery Community College Transcript, dated August 1,2002
Who's Who Among Students in American Junior Colleges Certificate, dated 
2001-2002
Applicant's microfiche record

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		951128 - 960812	COG

Period of Service Under Review:

Date of Enlistment:  960813		Date of Discharge:  010511

Length of Service (years, months, days):

	Active:    04  08  29	Does not exclude lost time
	Inactive:  None

Age at Entry:  19			Years Contracted:  5

Education Level:  12			AFQT:  72

Highest Rank:  Sgt

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (7)			Conduct:  4.0 (7)

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR (3), AFEM (2), GCM, MM, Letter of Appreciation, Certificate of Commendation, Certificate of Appreciation

Days of Unauthorized Absence:  3

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:

951127:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

970225:	Counseled for deficiencies in performance and conduct.  [Poor judgment and wrongful use of nitrous oxide/compressed gas with the intent to become intoxicated.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010406:	NJP for violation of UCMJ, Article 86:
Specification: Unauthorized absence from 0730, 010330 to 0730, 010402 (3 days).
Awarded forfeiture of $788.00 per month for 1 month, restriction and extra duties for 30 days, reduction to Cpl.  Reduction suspended for 3 months.  Not appealed.

010412:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 010406, tested positive for lysergic acid diethylamide.

010413:	Vacated suspended reduction to Cpl awarded at CO's NJP dated 010406.

010413:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

010416:	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.

010417:	Applicant refused medical officer's evaluation for drug dependency. 

010418:	NJP for violation of UCMJ, Article 112A:
Specification: Wrongful use of controlled substance.
Awarded forfeiture of $629.00 per month for 1 month, restriction and extra duties for 45 days, reduction to LCpl.  Not appealed.

010419:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was wrongful use of Lysergic Acid Diethylamide.  On or about 01 April 2001, Applicant violated Article 112a of the UCMJ by wrongfully using Lysergic Acid Diethylamide.  

010501:	SJA review determined the case sufficient in law and fact.

010503:	GCMCA [Commanding General, I Marine Expeditionary Force] 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 010511 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 1-8.  There is credible evidence in the record that the Applicant used illegal drugs.  Despite the positive aspects of the Applicant’s record and the short time he had remaining on his enlistment, drug abuse warranted processing for separation, normally under other than honorable conditions.  The discharge was proper and equitable.  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