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

 ex-LCpl, USMC 
Docket No. MD03-00178

Applicant’s Request

The application for discharge review, received 20021107, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  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 20031017.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  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 improper because the administrative discharge board originally held in February 2001 found no misconduct occurred and I was retained.  These findings must be approved by the separation authority unless the board’s findings were obtained though fraud or collusion.  No fraud or collusion was alleged.”

“2.  My complaint of wrongs under Articles 138 & 1150 were not considered properly JAGMAN § 0304(C)(2) states that a complaint is not cognizable under this chapter if other procedures exist that provide the individual notice of an action, a right to rebut or a hearing & review by an authority superior to the officer originating the action.  Since my administrative discharge was effected by the same authority complained of my Article 138/1050 complaints were proper & should have been considered & addressed.”

“3.  My discharge was improper because: 1) original board was improperly set aside; 2) board members refused to consider Article 138/1050 complaint issues raised; 3) senior board member was non-neutral; 4) challenged recorder’s exhibit 4 information was improperly considered; & 5) alleged perjury did not occur.”

“4.  My discharge was improper because the convening authority could simply have disagreed with the findings of the original board and recommended my separation in the best interest of the service, and I would have received a General discharge.”

Documentation

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

Applicant’s DD Form 214
Letter from Lt S_, USNR, dated October 10, 2001
Letter from Lt S_, USNR, dated September 10, 2001 (6 pages)
First Endorsement on CO, MarCorDet, Navy & MarCorIntelTrngCtr letter, dated August 22, 2001
Complaint of Wrongs, dated July 19, 2001 (5 pages)
Recommendation of Administrative Discharge, dated October 1, 2001
Applicant’s letter, dated September 6, 2001
Report of Administrative Board, dated February 14, 2001 with summarized record of proceedings (23 pages)
Recommendation of Administrative Separation Board, dated March 1, 2001
Defense Security Service letter with enclosures, dated March 1, 2001 (3 pages)
Recommendation of Administrative Discharge, dated March 8, 2001
Additional information for consideration in administrative separation proceedings, dated March 15, 2001
First Endorsement on CO, MarCorDet, Navy & MarCorIntelTrngCtr letter, dated June 1, 2001
Letter from Staff Judge Advocate, dated May 17, 2001
Acknowledgement of Rights, dated July 5, 2001
Notification of Separation Proceedings, dated June 28, 2001
E-mail from 1st Lt B_, OSJA, Quantico recorder for Government, to Lt S_, counsel for respondent, dated July 6, 2001

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		930928 - 970729	HON
	Inactive: USMCR (J)		930708 - 930927	COG

Period of Service Under Review:

Date of Enlistment:  970730		Date of Discharge:  011201

Length of Service (years, months, days):

	Active:    04  04  02
	Inactive:  None

Age at Entry:  22			Years Contracted:  4 (5 months extension)

Education Level:  12			AFQT:  88

Highest Rank:  Sgt

Final Enlisted Performance Evaluation Averages (number of marks):  The enlisted performance reports were available to the Board for review.

Military Decorations:  None

Unit/Campaign/Service Awards:  JSCM, N&MCAM, JMU, MUC, GCM (2), NDSM, AFSM, SSDR (3), ASR, OSR, CGSOR, Letter of Appreciation (9), Letter of Commendation (2), MM

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:

970730:	Applicant reenlisted for 4 years in pay grade E-5.

000721:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

000814:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

010214:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had not committed misconduct due to drug abuse, and recommended retention.

010308:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse and commission of a serious offense.  The factual basis for this recommendation was based upon the Defense Security Service Investigation Report dated 27 Sep 99 in which Applicant admitted to using marijuana while on active duty on or about 31 December 1997, in April 1998.

010517:	SJA review determined the case sufficient in law and fact.

010601:	Findings and recommendation of the Administrative Separation Board convened on 14 February 2001 are hereby set aside.

010628:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and commission of a serious offense.

010701:	Applicant extended enlistment for 5 months.

010706:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

011001:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse, and misconduct due to commission of a serious offense, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

011001:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse and commission of a serious offense.  The factual basis for this recommendation was based upon the Defense Security Service Investigation Report dated 27 Sep 99 in which Applicant admitted to using marijuana while on active duty on or about 31 December 1997, in April 1998, and to the administrative board of 14 February 2001.

011030:	GCMCA [Commanding General, Training Command, Quantico, VA] 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 20011201 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:  The Applicant opines his “discharge was improper because the administrative discharge board originally held in February 2001 found no misconduct occurred and (he) was retained.  These findings must be approved by the separation authority unless the board’s findings were obtained though fraud or collusion.  No fraud or collusion was alleged.”  “Subsequent to the board hearing, SNM’s ‘Defense Security Service Rights Warning/Waiver and Polygraph Examination Statement of Consent’ was located – contradicting the assertion that his Article 31(b), UCMJ, rights had been violated … SNM’s (contention) that the board’s findings and recommendations must be approved is in error.  Paragraph 6302.2c of the MARCORSEPMAN was modified in August 1995 by Change 1 to the manual …”  The record clearly shows the Applicant misled the Board by providing false testimony (perjury) about receiving his rights before confessing to drug use while on active duty.  The decision was properly set aside and the separation authority convened another board.  Relief denied.  

Issue 2:  The Applicant’s contention that “(his) complaint of wrongs under Articles 138 & 1150 were not considered properly” is not supported by the record.  Commander, Marine Corps Training Command (C47) ltr, 1910, B 0523, 22 Aug 2001 informed the applicant that the JAGMAN, Section 0304 “ … prohibits administrative discharge procedures and their results as grounds for a complaint of wrongs.”  Relief denied.  

Issues 1 & 3:  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.  “ … the sworn testimony of the SM clearly indicates that Sgt (Applicant) wrongly ingested marijuana on two separate occasions and subsequently worked to deceive the DSS agent (during his polygraph sessions).  Sgt (Applicant)’s blatant disregard for Department of Defense and Marine Corps policy as a Non-Commissioned Officer clearly indicates that he holds little regard for rules and authority. … His use of an illegal substance and subsequent behavior demonstrate that he has no potential for further service in the Marine Corps.”  A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a Marine.  The Applicant’s admitted drug abuse warranted processing for separation under other than honorable conditions.  The record is devoid of any evidence the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  The Applicant’s service record is marred by marijuana use on two separate occasions, a civilian conviction for DWI, lying to a DIS/DSS agent three separate times about his drug use and perjury.  The Applicant’s summary of service clearly reflects his disobedience of the orders and directives that regulate good order and discipline in the Marine Corps, and demonstrated he was unsuitable for further service. An upgrade to general (under honorable conditions) would be inappropriate.  Relief denied.

Issue 4:  All be it conjecture on the Applicant’s part, this issue obviously lacks merit since the record unmistakably shows the convening authority’s intent to “set aside … the findings and recommendation of the Administrative Separation Board convened on 14 February 2001 (and) convene (another board) to consider him for separation by reason of misconduct due to drug abuse and commission of a serious offense …”  Relief denied.
 
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, a drug-free lifestyle, certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.  At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.
 
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