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

 ex-PVT, USMC
Docket No. MD03-00399

Applicant’s Request

The application for discharge review was received on 20030109.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing discharge review before a traveling panel closest to Los Angeles, CA.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing, and that all hearings are held in the Washington National Capital Region. 

Decision

A documentary discharge review was conducted in Washington, D.C. on 20031205.  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 – Pattern of misconduct (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I A_ A_, was discharged from the Marine Corps, Under Other Than Honorable Conditions for smoking marijuana.  I turned myself in because I felt very bad about the situation, more like guilty is what I felt.  I was twenty years old when I first tried marijuana.  I was approximately a year and a half into my enlistment when this took place.  I was sent to get better through 3 drug levels and I failed.  My attitude had been corrupted because of the drug abuse and therefore it was working against me and the help was given through the Marine Corps.  About six months after being discharged I starting roofing and amateur boxing.  I worked for 4 different roofing companies in the first five years, learning everything I could from each company and now I roof for myself.  I have a portfolio of all my roofing on my own and a list of references.  As far as the boxing, I boxed as an amateur for two years and then turned pro.  I still do my own roofing, I still fight.  I do not smoke marijuana, as of many years and I still am a highly motivated Marine.  Semper FI”

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:   USMC		None
	Inactive: USMCR(J)		870218 - 870920	COG

Period of Service Under Review:

Date of Enlistment:  870921		Date of Discharge:  900924

Length of Service (years, months, days):

	Active:    03  00  04
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  70

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.9 (9)			Conduct:  3.8 (9)

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, Rifle Expert Medal (2) 

Days of Unauthorized Absence:  2

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Pattern of misconduct (administrative discharge board required but waived), authority:  MARCORSEPMAN Par. 6210.3.

Chronological Listing of Significant Service Events:

880805:	Counseled for deficiencies in performance and conduct.  [SNM subjected this command to a display of unprofessionalism that over-taxed the patience of his superiors.  He was, when reacting to orders from noncommissioned and commissioned officers, surly and argumentative.  He was in violation of grooming standards as he was unshaven.  His actions clearly bordered on disrespect.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

881123:	NJP for violation of UCMJ, Article 91: In that PFC A_(Applicant), did on operation VALIANT BLITZ 89 in the Republic of Korea, on or about 881106, was disrespectful in language towards Sgt D_ a noncommissioned officer, then known by the said PFC A_(Applicant) to be a noncommissioned officer, who was then in the execution of his office by saying to him “get off my case,” or words to that effect; violation of UCMJ, Article 91: In that PFC A_(Applicant), did on operation VALIANT BLITZ 89 in the Republic of Korea, on or about 881106, was disrespectful in language towards Sgt D_ a noncommissioned officer, then known by the said PFC A_(Applicant) to be a noncommissioned officer, who was then in the execution of his office by saying to him “I’ll tell you what’s up” or words to that effect; violation of UCMJ, Article 89: In that PFC A_(Applicant), did on operation VALIANT BLITZ 89 in the Republic of Korea, on or about 881105, behave himself with disrespect toward 1ST Lt P_, his superior commissioned officer, then known by the same PFC A_(Applicant), to be his superior commissioned officer, by saying to him, “alright,” or words to that effect, while omitting a salute, while the said 1ST Lt P_ was talking to him.
Awarded forfeiture of $170.00 pay per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

900207:	Counseled for deficiencies in performance and conduct.  [Substandard performance as a result of recent conduct and proficiency.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

900329:	Medical evaluation by a military psychologist:

	AXIS I: 304.30 Cannabis Dependence.
	
	AXIS II: 301.90 Personality Disorder Not Otherwise Specified with Antisocial and Narcissistic Personality Traits.

	AXIS III: None.

	AXIS IV: Psychosocial stressor: dissatisfaction with active duty; concerns for his mother’s welfare; and inability to do surfing every day
	Severity: 2 – mild.

	AXIS V: Current GAF: 75.
		  Highest GAF in past year: 80. 

900403:	NJP for violation of UCMJ, Article 86: UA from 1030, 900321 to 0700, 900323, from DCT course, to wit: Las Pulgas, Camp Pendleton, CA; violation of the UCMJ, Article 86: At MCAGCC Twentynine Palms, CA, at or about 0730, 900326, UA from his appointed place of duty, to wit: Battery Formation.
Awarded forfeiture of $405.00 pay per month for 2 months (suspended for 6 months), restriction and extra duties for 45 days, reduction to E-2.  Not appealed.

900412:	NJP for violation of UCMJ, Article 134: At MCAGCC Twentynine Palms, CA, at or about 1700, 900408, breaking restriction by leaving the Bn area and going to Camp Wilson; violation of UCMJ, Article 117: At MCAGCC Twentynine Palms, CA, at or about 1700, 900408, wrongfully used a provoking gesture toward 1st LT K_, 2/3, while driving by flipping him off.
Awarded forfeiture of $362.00 pay per month for 1 month, restriction and extra duties for 45 days (suspended for 6 months), reduction to E-1.  Not appealed.

900509:	Applicant discharged from inpatient drug rehabilitation treatment as a treatment failure due to the presence of the previously diagnosed personality disorder.
 
900602:	Suspension of NJP imposed and suspended on 900403 for a period of 6 months is hereby vacated and the punishment is ordered executed.

900907:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of drug rehabilitation failure and misconduct, specifically, a pattern of misconduct.

900907:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

900907:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and for drug rehabilitation failure.  The factual basis for this recommendation was your failure to conform to the standards of the Marine Corps.  On 23 November 1988, you received NJP for violation of Articles 89 and 91, UCMJ, disrespectful behavior towards a commissioned officer and two specifications of disrespectful language towards an NCO.  On 3 April 1990, you received NJP for violation of Article 86, UCMJ, unauthorized absence for two days and absence from your appointed place of duty.  On 12 April 1990, you received NJP for violation of Articles 117 and 134, UCMJ, provoking gestures toward a commissioned officer and breaking restriction.  On 29 March 1990, you were diagnosed by a clinical psychologist as being drug dependent and having a personality disorder not otherwise specified with anti-social and narcissistic personality traits.  On 16 April 1990, you were assigned to Level III rehabilitation treatment at Naval Drug and Alcohol Rehabilitation Center, NAS Miramar, California.  On 6 May 1990, you were discharged from treatment as a treatment failure due to presence of the previously diagnosed personality disorder.  Due to your continued misconduct, disregard for military authority and failure to complete Level III treatment, I have determined that you do not possess potential for further service and, accordingly, your retention is not warranted.

900907:	SJA review determined the case sufficient in law and fact.

900911:	GCMCA [Commanding General] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19900924 under other than honorable conditions for misconduct due to a pattern of misconduct (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

Issue 1.  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 three occasions, adverse counseling entries on other occasions, and drug rehabilitation failure.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service.  The record is devoid of evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  An upgrade to honorable is inappropriate.  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 P1900.16D), effective 27 Jun 89 until 17 Aug 95.

B.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 86, unauthorized absence; Article 89, disrespect to a commissioned officer: Article 91, disrespect to a NCO; Article 117, provoking gestures; Article 134, break restriction.

C.  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.  

D.  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.

E.  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