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

 ex-Pvt, USMC 
Docket No. MD03-00502

Applicant’s Request

The application for discharge review was received on 20030203.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests 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 20031229.  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 stated

Applicant’s issues, as stated on the application:

1.  “I began my military career by enlisting in the Marine Corps at age eighteen. I successfully completed boot camp, became a Marine and continued my training with the Corps. Along the way, I met a woman whom I would marry, despite being young in age (refer to Document 1: Marriage License). Unfortunately, as our relationship continued, my wife caused me a large quantity of negative attention from my command due to actions on her part. Despite her actions, I believed in the Corps values of honoring family and because she was my wife, I trusted and believed in her. I did not realize at the time she had herself, and only herself, in mind.

It finally came to a point where my platoon sergeant said he had enough of her actions and informed me that I would need to discuss with my wife, a change in her actions otherwise he would check into having her medical benefits removed. Because she had told me that she had many medical issues, I knew this could be a potentially large problem. Financially, 1 did not know how I could afford any medical expenses (without the help of insurance) based on a military salary. At this point, 1 felt that my only choice would be to become discharged from the Marine Corps and find a civilian job, with benefits, to help cover medical expenses. 1 knew in order to become separated from the Marine Corps before my enlistment was complete, I would have to break a code of conduct. My choice was to inform my superiors that I had smoked a controlled substance (marijuana). As a result, I was then discharged, after serving three-quarters of my enlistment, with other than honorable conditions because of drug abuse.

I returned home after my discharge and shortly after, I discovered evidence of many forms of deception on my wife’s part and subsequently, I filed for, and was granted, a divorce from my wife (refer to Document 2: Divorce papers).

I strongly believe my discharge was inequitable because not only did I not smoke marijuana, but also there is no record in my medical files that I had smoked marijuana either at the time or any tune prior. I feel that I have a strong military record to support my request to change my discharge to honorable (with a re-entry code of RE-1A).”

Documentation

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

License and Certificate of Marriage
Findings of Fact, Conclusion of Law and Judgment, Dane County Circuit Court, State of Wisconsin (6 pages)
Letter of reference, dated February 25, 2003
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		921117 - 921222	COG

Period of Service Under Review:

Date of Enlistment:  930823		Date of Discharge:  960828

Length of Service (years, months, days):

	Active:    03  00  06
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  55

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.9 (6)			Conduct:  4.0 (6)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR

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:

930823:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

940907:	NJP for violation of UCMJ, Article 107:
Specification: Damaged military property by altering his military ID card on 940905.
Awarded forfeiture of $217.00 per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

950928:	Counseled for deficiencies in performance and conduct.  [Violating articles 134, dishonorably failing to pay just debt.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960426:	NJP for violation of UCMJ, Article 86:
Specification: Failed to pay MWR at 960313 (owed $967.87).
Violation of UCMJ, Article 134:
Specification: Made a check for $29.00 without sufficient funds.
Awarded forfeiture of $457.00 per month for 2 months, restriction and extra duties for 45 days, reduction to PFC.  Forfeiture suspended for 6 months.  Not appealed.

960430:	Counseled for deficiencies in performance and conduct.  [Dishonorably failing to pay a just debt to MWR.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960521:	Counseled for deficiencies in performance and conduct.  [Misconduct for abuse of special liberty privileges and negligence in following instructions to report back to my chain of command.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960702:	NJP for violation of UCMJ, Article 112A:
Specification: Used an illegal illicit drug on 960606.
Awarded forfeiture of $437.00 per month for 2 months, restriction and extra duties for 45 days, reduction to Pvt.  Not appealed.

960702:	SACC evaluation for drug abuse found the Applicant to be a drug abuser, not drug dependent.  

960703:	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.

960703:	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 marijuana. 

960718:	Counseled for deficiencies in performance and conduct.  [Pattern of misconduct due to drug abuse.  On 2 July 1996, you received NJP for wrongful use of marijuana.]  Necessary corrective actions explained, sources of assistance provided.

960802:	SJA review determined the case sufficient in law and fact.

960809:	GCMCA [Commander, Marine Corps Base Hawaii] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

Partial discharge package missing from service record (Page one of the Notification of Separation Proceedings).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19960828 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.  There is credible evidence in the record that the Applicant used illegal drugs.  The Applicant’s statements to the contrary and documents provided for review do not refute the presumption of regularity in this case.  Drug abuse warranted processing for separation.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  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 18 Aug 95 to 30 Jan 97. 

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