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

 ex-LCpl, USMC 
Docket No. MD03-00528

Applicant’s Request

The application for discharge review was received on 20030211.  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.  “It is requested that the board take note of servicemembers Proficiency and Conduct Marks, Cert-Coms, Good Conduct Award, Letters of Appreciation, Meritorious Masts, and Fit-Reps.

It is Also requested the board take into consideration that the service member has acquired (1) Honorable Discharge.”

Documentation

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

Letter from Applicant, dated January 29, 2003
Report card
Academic Award, dated July 31, 2002
Academic Award, dated October 29, 2002
Applicant’s DD Form 214 (Member 1 and 4)

PART II - SUMMARY OF SERVICE

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

	Inactive: USMCR(J)		960912 - 961028	COG
	Active:   USMC		961029 - 001109	HON

Period of Service Under Review:

Date of Enlistment:  001110		Date of Discharge:  011116

Length of Service (years, months, days):

	Active:    01  00  07
	Inactive:  None

Age at Entry:  26			Years Contracted:  3

Education Level:  12			AFQT:  66

Highest Rank:  Sgt

Final Enlisted Performance Evaluation Averages:  Fitness reports were available to the Board for review through 20010815.

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM, N&MCOSR, SSDR, MM (2), Certificate of Commendation, Certificate of Appreciation, Letter of Appreciation

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:

001110:	Applicant reenlisted for 3 years.

010814:	Counseled for deficiencies in performance and conduct.  [Failure to adhere to Marine Corps standards of conduct and discipline as demonstrated by my failure to report to Detachment physical training.  By using my rank inappropriately to attempt to excuse a junior Marine from Detachment physical training.  When confronted by your SNCOIC you were disrespectful to the GySgt.  This behavior is prejudicial to good order and discipline and will not be tolerated in the Marine Corps.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010919:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 010914, tested positive for THC.

010928:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by wrongful use of THC.

010928:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

011017:	NJP for violation of UCMJ, Article 91:
Specification: Insubordinate conduct toward a staff noncommissioned officer, by stating a SNCO used a racial slur.
Violation of UCMJ, Article 92:
Specification: Failure to obey order or regulation on 1530, 010928, to wit: disobeyed a SNCO.
Awarded forfeiture of $850.00 per month for 2 months, restriction and extra duties for 45 days.  Forfeiture and extra duty suspended for 6 months.  Not appealed.

011017:	Medical evaluation for drug abuse found no substance abuse indicated at this time.  

011022:	Counseled for deficiencies in performance and conduct.  [Incidents prejudicial to good order and discipline to wit: Article 92: Failure to obey order or regulation.]  Necessary corrective actions explained, sources of assistance provided, disciplinary warning issued.

011107:	Applicant waived administrative discharge board.

011107:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was by reason of misconduct due to drug abuse.  

011115:	SJA review determined the case sufficient in law and fact.

011115:	GCMCA [Commanding General, II 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 20011116 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.  Despite the positive aspects of the Applicant’s record, drug abuse warranted processing for separation.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  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