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

  ex-LCpl, USMC
Docket No. MD03-01059

Applicant’s Request

The application for discharge review was received on 20030530.  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 listed a civilian counsel as his 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.  “I was an excellent Marine during my 3 years and 9 months of service.  Up until the events that precipitated my discharge I had no disciplinary actions filed against me.  I be believe my excellent years of hard work and service should lead to an upgrade to my discharge as honorable.”

Additional issues submitted by Applicant’s counsel/representative (Civilian Counsel):

2.  “In May of 2002, J_ M_ (Applicant) tested positive for an illegal substance.   Prior to this event he had no disciplinary problems, no violations on his SRB and no prior positive drug tests.   The major issue at hand was the representation he received and the facts he received in regards to this particular situation.

Due to his positive drug test he was immediately suspended from his duties as Barracks Manager and was not allowed to continue his work at the Company Office.   He was put on restriction and had to check in with the Gunny Sargent every two hours for 45 days.   He was not allowed to leave the base or drive while on base.   All leave was taken away and the majority of his paycheck for the remainder of his time on base was withheld giving him barely enough money to fulfill his financial obligations.   He was also demoted from Corporal to Lance Corporal.

He met with an attorney from the JAG Corps who told him what his punishment would be upon choosing an NJP over a court martial.   Mr. M_ (Applicant) was essentially told he had two options both of which would lead to a discharge that would not be graded as honorable.   While Mr. M_ (Applicant) desired to stay in the Marine Corps he was told that this was not going to be one of the options available to him.   It was never discussed that this disciplinary action could be challenged with any chance of succeeding.   By taking an NJP he forfeited the important right of appealing this decision.   He was given no more than two meetings with counsel which is an inadequate amount of time to discuss a decision that would have an impact on the rest of his life.

J_ (Applicant) was told his first option was to fight the charge and that he would most likely lose and spend quite a bit of time in the Brig and then he would be dishonorably discharged.  His second option was to take a plea bargain and plead guilty to the charge.  The result of that would mean that the Battalion Commander would make the decision on whether or not he was going to be discharged and that the Battalion Commander would most likely opt for his discharge.  He was never allowed to speak to any of the higher ranking officials and explain his actions or plead his case.

J_ M (Applicant) was diligent in following the punishment he received under the NJP because it was very important to him to stay in the Marine Corps.  He was never asked about his side of the story or ever asked whether or not the drug test was administered properly.  Almost nothing was discussed in regard to this incident.  He was merely asked to sign a piece of paper and the guilty plea was over.  We do not dispute that he pled guilty to the offense.  However, J_ M_ (Applicant) would like the Council to consider several factors.

First, outside of this offense he had an impeccable service record.  He went into the Marines following in his family’s footsteps excited about what lay ahead and excited to serve his country.  He rose fairly quickly through the ranks and worked incredibly hard at every task or duty he was presented with.

Second, he was never told the effect an other-than discharge would have on the rest of his civilian life, especially in the area of trying to get gainful employment.  James has found that with an other-than discharge employers have not been willing to hire him.  He came out of high school and went directly into the Marines expecting to have found his lifelong career.  Unfortunately one mistake has left him with the inability to follow the career which he dreamt about since he was a child.  His work experience before the Marines is limited to the two years he could work from the ages of sixteen to eighteen.  Therefore the employer’s are forced to rely upon his service record and an other-than discharge leads to questions of character.

Outside of the military you are often offered the ability to keep a first offense off your record upon the completion of a probationary period.  This is done with the understanding that everyone makes one mistake and they will be given one chance to correct the situation.  Of course, if the detrimental behavior continues the civilian could face more probation, a criminal record or even incarceration.  With an other-than discharge this effectively leaves him with a conviction on his record even though he has no criminal record.

Mr. M_ (Applicant) is only 23 years old and has an opportunity to enter the Plumber’s Union.   This would allow him to enter into a career and not just move from minimum wage job to minimum wage job.  It would pay him well and would allow him to learn a trade important in society.  It would keep him moving in the right direction and would help him continue to tend to his financial responsibilities.  Unfortunately, the Union will not allow him to take the entrance exam with an other than military discharge on his record.  He wants to become a productive member of society, gain an education and enter into a field he has a passion to succeed in.

Finally, the ultimate punishment for J_ M_ (Applicant) was being discharged from the military regardless of the status.  He felt like he had let his country and his fellow Marines down by not following the rules and by his lapse in judgment and this was never more evident than him having to watch his fellow Marines and lifelong friends fighting in Operation Iraqi Freedom and not being able to help protect his country and his friends.  He recognizes that he made a mistake and wants the board to understand that he knows that the mistake was his and his alone.  He knows he will not be able to replace the people he met and the experiences he went through along the way while in the Marine Corps.

THEREFORE, due to his impeccable service record before the incident surrounding his discharge and his willingness to seek employment and become a productive member of society the Naval Council of Personnel Boards should consider upgrading J_ M_'s (Applicant's) discharge status to an Honorable Discharge.”
 
Documentation

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

Applicant’s DD Form 214
Brief in Support of Amending Applicant’s discharge status 
Letter from Civilian Counsel dtd 10 July, 2003

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		980929 - 981108	COG

Period of Service Under Review:

Date of Enlistment:  981109		Date of Discharge:  020828

Length of Service (years, months, days):

	Active:    03  09  20
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  24

Highest Rank:  CPL

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (10)			Conduct:  4.3 (10)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, GCM, CoC, LoA 

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:

980920:	Initial enlistment contract documents admission of pre-service marijuana experimentation.  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

000803:	Applicant awarded Certificate of Commendation for professional achievement in the superior performance of duty.

020326:	NAVDRUGLAB SAN DIEGO, CA, reported Applicant’s urine sample, received 020320, tested positive for MDMA.

020425:	Counseled regarding deficiencies, specifically, the illegal use of MDMA.  Necessary corrective actions explained.  

020515:	Applicant advised of VAH addiction treatment availability by M.O.  Applicant refused evaluation for dependency.
	Administrative discharge warning issued.

020529:	Applicant given the opportunity to consult with lawyer at no cost.  Applicant does not elect to refuse NJP.  

020530:	NJP for violation of UCMJ, Article 112a (1 spec):
Specification 1:  Did at an unknown location, on or abt 13 May 02 wrongfully use methylene dioxyamphetamine/methylene dioxymethamphetamine (Ecstasy), a controlled substance.
Awarded red to pay grade E-3, forfeiture of $400.00 per month for 2 months, restriction and extra duties for 45 days.  Not appealed.

020801:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was Navy Drug Lab message received on 26 March 2002.  Commanding officer’s comments:  “He admitted his drug abuse at Battalion Nonjudicial Punishment.  Lance Corporal Morse was a Corporal at the time of his drug use.  Drug use is unbecoming of a Noncommissioned Officer.  His conduct brings discredit upon the Marine Corps and sets a bad example for junior Marines.  Although this is his only documented violation of the UCMJ, drug use poses a serious threat to the safety of others and is prejudicial to good order and discipline.  Lance Corporal Morse’s conduct demonstrates his unwillingness to conform to the rules and regulations of the UCMJ.  His refusal of the Medical Officers evaluation demonstrates his lack of desire to address his drug problem.” 

020805:	Applicant advised of rights to be exercised or waived during separation proceedings and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights.

020806:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by documented use of an illegal substance.

020814:	SJA review determined the case sufficient in law and fact.

020821:	GCMCA CG 1st FSSG directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.
		CG 1st FSSG request Bar Order from MCB Camp Pendleton

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020828 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 contends that he served the United States well and he is entitled to an upgrade.  When the service of a member of U.S. Marine Corps has been honest and faithful, it is appropriate to characterize that service as honorable.  An Under Other Than Honorable Conditions discharge is warranted when a significant negative aspect of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by the use of an illegal substance while serving as a Noncommissioned Officer.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

Issue 2.  There is credible evidence in the record that the Applicant used illegal drugs.  Mandatory processing for separation is required for Marines who abuse illegal drugs.  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.

The civilian authorities treat some offenses with leniency because they are a first time incident on an otherwise clear record; however, to maintain proper order and discipline, the military does not view such offenses as minor infractions.  The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for illegal drug use, thus substantiating the misconduct for which he was separated.  The summary of service clearly documents that misconduct due to drug abuse was the reason the Applicant was discharged.  No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable.  

The Applicant's misconduct is clearly documented.  He acknowledged and waived his rights to administrative review.  He was notified that by waiving his rights and accepting an other than honorable discharge, he could possibly encounter significant difficulties in obtaining employment and other benefits.  The Applicant was afforded the appropriate due process during the processing of his case.  An upgrade of the Applicant's discharge to an honorable characterization is not warranted.  Relief denied.

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural error or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no such errors after a review of Applicant’s case.  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 naval service.  The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, certification of non-involvement with civil authorities, and credible evidence of a substance free lifestyle (if appropriate).  As of this time, the Applicant has not provided sufficient documentation for the Board to consider.  Therefore, no relief is appropriate. The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities as requested in the issue.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  

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 documentation to support any claims of post-service accomplishments or any other evidence related to his discharge 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