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

 ex-PFC, USMC
Docket No. MD03-01147

Applicant’s Request

The application for discharge review was received on 20030620.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record 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 20040423.  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.  “Members of the Review Board,

I am submitting this letter in hope of a Discharge upgrade, the reasoning I believe that I should have my discharge upgraded goes as follows.  As to my knowledge my record was clean till one incident, which was a drug infraction, Positive THC content, because of this incident I served 45-day restriction, 45 day EPD and loss of Rank.  The time was served and I had complied with the rules to which I had to adhere to.  The only thing I had was one year of “probation” basically no problems in a year.  As a Marine with A Certificate of Commendation and a Navy Marine Corp Achievement Medal in my first two years of Service I knew what I was doing and I showed it.  Being a Private First Class was a problem though, this lead to a “power struggle”.  A Corporal by the name of Corporal A_, new to the unit and newly promoted Corporal did not seem to like the fact I had a NCO billet, and that I corrected her when she was wrong, she did not admit to this but It was shown when she was always trying to get me to do something wrong and point it out.  Because of this she singled me out, which meant a complication because she believed that her power was more than she had.  Also to my knowledge at the time she was pregnant which I believe impaired her judgment also.  Due to this problem and because of her not showing any leadership traits or troop welfare it lead to the incident which lead to my discharge.  The incident was of disrespect, I did disrespect her I will not lie, but if you tease a pit bull enough he is going to retaliate cause anyone can only take so much.  This lead to the other problem which was she jumped the chain of command, she did not talk to the platoon Sergeant or to any Staff NCO in the platoon, neither did she talk to the platoon Lieutenant no she jumped all the way to the Company Commander knowing of my probation period.  Because of this I has to talk to the GROUP Sergeant Major, Sergeant Major S_ who asked me the question, “Do you want to stay in the Marine Corp”, I didn’t know, that’s what I told him because the Marine Corp hadn’t done anything wrong to me I did it to myself but because of people who were threatened by my ability and skills I felt that there was no way of being successful or trying to enjoy my last years.  I was fearing possible Brig time if I stayed in.  I would have if it weren’t for this situation that I placed my self in, tried to get out of, but got put back down.  I really feel I deserve this upgrade; I did not get let go under bad conditions for a reason I think because I was a good Marine, I believe that everyone saw my records and saw good potential.  A good example of this was not only did I go to the company office for my final discharge papers but also for my 3rd award my Meritorious Mast which I believe that till the end I was doing my best even when The discharge papers were going though.  This concludes my brief explanation for my discharge and extra information.
Thank you for your time and consideration.

R_ O_ M_ (Applicant)
(Applicant’s social security number deleted)

Unit Information
1FSSG 7th Engineer Support Battalion, Headquarters and Service Company, Supply Platoon

Company Commander:  Captain A_
Company First Sergeant: First Sergeant H_
Officer In Charge:  Lieutenant M_ M_
Staff NCOIC: Master Sergeant J_ M_
Platoon Sergeant: Sergeant H_ L_

Phone:  (Phone number deleted)

Other Contacts:
Gysgt C_ (Supply)
Sgt S_ (Supply)
CWO J_ (Utilities)
Major A_
Sgt T_ (supply)
Cpl H_ (supply)
Cpl W_ (Motor Transport)”

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:   None
	Inactive: USMCR(J)		991207 - 991227	COG

Period of Service Under Review:

Date of Enlistment:  991228		Date of Discharge:  020731

Length of Service (years, months, days):

	Active:    02  07  04
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  73

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  NMF*			Conduct:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, N/MCAM, Certificate of Commendation, MM

Days of Unauthorized Absence:  None

*No marks found in service record.

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:

991206:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

020319:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 020313, tested positive for THC.

020408:	NJP for violation of UCMJ, Article 112A:
Specification: Wrongfully used THC on 020304.
Awarded forfeiture of $619.00 per month for 2 months, restriction and extra duties for 45 days, reduction to PFC.  Not appealed.

020501:	Applicant refused medical officer evaluation.  

020617:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

020617:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was your positive urinalysis of 020305 for your use of THC. 

020618:	Applicant advised of 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.

020629:	SJA review determined the case sufficient in law and fact.

020701:	GCMCA [Commander, 1st Force Service Support Group] 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 20020731 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. 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 significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  

The Applicant implies that a “disrespect” charge contributed to his discharge, yet, the Applicant’s service record does not provide evidence of this offense being the reason for the discharge action.  However, 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.  

To permit relief, an error or inequity must be found to have existed during the period of enlistment under review.  There was nothing in the records, nor did the applicant provide any documentation, to indicate there existed an error of fact, law, procedure, or discretion at the time of discharge.  Relief denied.
 
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