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

 ex-LCpl, USMC
Docket No. MD03-00981

Applicant’s Request

The application for discharge review was received on 20030513.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable or general/under honorable conditions.  The Applicant requests a documentary record discharge review.  The Applicant designated the Disabled American Veterans as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040408.  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. “To Whom It May Concern:

I am writing this statement to disclose a written history of my time served in the United States Marine Corps from November 4, 1996 until my release from active duty on May 27, 2000.

After graduating from high school I successfully completed boot camp and School of Infantry.  From there I received orders for Aberdeen Proving Grounds to attend additional formal schooling as a Metal Worker (MOS 1316).  I received my first promotion to Private First Class (E-2) while in school there.  After successfully completing school I received orders for 3rd Force Service Support Group in Okinawa, Japan.

While serving with the 9th Engineer Support Battalion over there I began to excel as a leader and motivator, and this is reflected in my conduct scores while serving with this unit.  I was also recommended for a meritorious promotion board and was subsequently promoted to Lance Corporal (E-3).  I maintained a solid rapport with my superiors and was continually groomed for better leadership opportunities.

During my time with 9th ESB I served in billets as the Welding Shop NCO, and from there was asked to assume the responsibility as the Tool Room NCO.  During my tenure as Tool Room NCO I was responsible for approximately $25,000 in tools and publications.  I rebuilt the publications library for our mechanical shop, and I brought our material readiness up from 75% to 95% in less than two (2) months.  I was also recommended for two (2) Navy Achievement Medals while in that billet by my OIC.  He later was, and in fact did testify on my behalf at my administrative appeal board.

While serving overseas I also took advantage of several correspondence courses.  Which were to later aid me in promotion and to allow me to be more skillful in my various billets.  In addition to these duties I was also responsible in escorting and guarding prisoners from our unit that had been detained at the brig for various charges

In May of 1999 I was voluntarily screened for Marine Security Guard School and approved.  I received orders shortly after this and checked in October 1999 for Marine Security Guard School Class 1-00.  During my time at Marine Security Guard School I was promoted to Corporal (E-4), and received a Good Conduct Medal for 3 years of continuous good conduct.

After successful completion of training I received orders for U.S. Consulate Kingston, Jamaica.  Before I was to execute my orders I was required to complete the initial screening for a Top Secret Security Clearance; mandatory for my duty as a Marine Security Guard.  During the interviews some events from my past did not coincide with these statements, specifically, the fact that I had disclosed prior to my initial enlistment that I had used marijuana approximately 500 times during my adolescent.  This was what I had disclosed to the recruiter, but after careful review of my records it was clear that the 5 had been penned over with a thick 1.  Stating 100 times versus 500 times.

During my interviews and statements the investigator asked if I would take a polygraph concerning my “Wrongful use of illegal drugs”.  I agreed to the test, and failed due to inconsistencies in my written statements and oral responses.  After the test I was in fear and disclosed in a written statement that I had used marijuana a few times since being on active duty, and also used psychotropic drugs prior to my enlistment.  These statements with no other supporting, detrimental evidence compelled my Commanding Officer at the time to recommend me for an administrative discharge.  I requested an administrative appeal hearing for this type of discharge.  During my appeal hearing my former Officer in Charge from 9th ESB spoke on my behalf via telephone from North Carolina, and my then current Staff NCO in charge from MSG Battalion testified on my behalf - both favorably.  All these statements on my behalf did not win out the approval of the board, and I was recommended for an Other than Honorable discharge.

During my entire active service career I maintained high PFT scores of first class.  I remained qualified as a rifle sharpshooter and pistol expert.  My acknowledged drug use during active service was limited to three (3) occasions of recreational marijuana use while on authorized leave, off government premises.  My performance, behavior, and conduct records clearly indicate my dedication, leadership, focus, and full mental acuity while in the service of my country.  I regret the repercussions that my limited actions had on my otherwise unblemished service career.  The type of discharge I received was the personal crisis in my life that precipitated my facing the issues in my life, and has set me on a path that allowed me to embrace a way of living free from drugs and alcohol.  Today I am able to live a clean, sober, and honest life.

C_ T_ E_ (Applicant) (social security number deleted)”

Additional issues submitted by Applicant’s counsel/representative (DISABLED AMERICAN VETERANS):

2.  Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of the current Other Than Honorable to that of General, Under Honorable Conditions or Honorable.

The FSM served on active service from November 4, 1996 to May 26, 2000 at which time he was discharged due to Misconduct.

As the FSM has submitted documentation in support, we as the representative, ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174C.

The FSM had almost four years of good service, that all articles of misconduct noted were informed by the FSM to others and that all occurred while not on duty or prior to entry.  In support the FSM submits several letters of reference and a criminal history record that reflect his good character.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the applicant.

Respectfully,”

Documentation

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

Letter of Character from Sergeant R_ W. W_, USMCR, dtd May 2, 2003
Character Reference ltr from T_ D. K_, dtd Mar 31, 2003
Character Reference ltr from L_ M. O_, dtd Mar 30, 2003 (2 copies)
Criminal History Record, Fairfax County Police Dept, dtd Mar 27, 2003

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		960815 - 961103	COG

Period of Service Under Review:

Date of Enlistment:  961104		Date of Discharge:  000526

Length of Service (years, months, days):

	Active:    03  06  23
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  68

Highest Rank:  Cpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.6 (8)			Conduct:  4.5 (8)

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM, SSDR (w/1 Star), LoA, Rifle Sharpshooter Badge

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:

960814:	Applicant briefed upon and certified understanding of Marine Corps policy concerning the illegal use of drugs.

991207:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by your admitted use of drugs.

991207:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

991209:	Gunnery Sergeant J_ K. L_’s Statement:  “Upon Cpl E_ (Applicant)’s return from NCIS on 991202, I asked the Marine for a SITREP, and at that time he stated to me, in no uncertain terms that, he had failed the DSS polygraph, and that the reason for the failure was that he was untruthful about his prior service drug use.  He also stated that during the interview he got scared and volunteered the fact that he had used drugs other than the Marijuana he had a waiver for (i.e.) LSD, and mushrooms.  He also stated that he had illegal drug use after his enlistment acceptance and while on active duty.”

991216:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

000314:	SACC:  Evaluated on 13 Mar 2000 and does not meet the Diagnostic and Statistical Manual of Mental Disorders criteria for drug abuse or dependence, but does meets the DSM IV criteria for alcohol dependence.  
	Impression:  Alcohol Dependence DMS IV 303.90
 		         Cannabis Abuse per MCO P530-0.12A
	Prognosis:  Fair
	Treatment Recommendation:  Abstain from alcohol and all other mood altering drugs until separation, abstain from consumption of alcohol until treatment is completed, place on urinary surveillance program until separation, process for illegal drug use, hold strictly accountable for any further incidents.

000415:	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, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

000524:	SJA found the proceedings sufficient in law and fact.

000524:	GCMCA [MCB, Quantico, VA] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse and administrative reduction to the grade of Lance Corporal upon separation.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20000526 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 and 2.  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 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