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

 ex-PVT, USMC
Docket No. MD03-01492

Applicant’s Request

The application for discharge review was received on 20030911.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing before the Board in the Washington National Capital Region.  The Applicant listed the Veterans of Foreign Wars as his representative on the DD Form 293.  Subsequent to the applicant, the Applicant informed the Board that he would be unable to appear before a personal appearance hearing and requested the Board conduct a documentary record review.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041006.  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-Drug abuse (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

“1.  My discharge was inequitable because given the circumstances I would not have had such adverse action if I did not have to deal with the sudden death of my fathers death at such a young age.”

“2.  The time action had occurred I was not aware nor was it made known to me that there was counseling available to all Marines.”

“3.  I was not given proper legal representaion.”

Additional issues submitted by Applicant’s counsel/representative (VETERANS OF FOREIGN WARS):

“4.  Since the applicant discharge his post service has been noteworthy, he has earned his AA in liberal arts.  He is presently in a BA program at Columbia College in Los Alamitos, CA.  He has served very honorable in the Army National Guard, he has gotten married, have four children and he have bought a home.  In addition the National Guard and his civilian employers speak very highly of his character.”

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s ltr to the Board, dtd 030804.
Discharge Record of W  Jr., R  T., dtd 900928.
Waiver to enter the California Army National Guard, dtd 971113.
State of California Certificate of Death ico the Applicant’s Father, dtd 870322, 1730.
Applicant’s Army/ARNG DD Form 214.
ARNG promotion order, dtd 010919.
Ltr of clearance Validation for SGT W  Jr., R  T., dtd 020311.
AA Degree from Columbia College.
NCO Evaluation Report, DA Form 2166-8, 2001 10 to 2002 05.
Service School Academic Evaluation Report, DA Form 1059, 010707 to 010721.
Service School Academic Evaluation Report, DA Form 1059, 000909 to 000923.
Character Reference, dtd 021018.
Character Reference, undated and unsigned.
Employment Reference, dtd 020914.
Employment Reference, dtd 021014.
Employment Reference, dtd 020915.
Applicant’s DD Form 214, Completion of Required Active Service (USMCR) IADT.
Character Reference, dtd 030929.
Discharge notification from the ARNG /Army, dtd 031204

PART II - SUMMARY OF SERVICE

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

	Active:   	None
	Inactive: 	None

Period of Service Under Review:

Date of Enlistment:  871124		Date of Discharge:  900912

Length of Service (years, months, days):

	Active:		00  02  19
	Inactive:	02  06  19

Age at Entry:  17			Years Contracted:  8 (USMC Reserves)

Education Level:  12			AFQT:  58

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0 (4)			Conduct:  4.0 (4)

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS /Misconduct-Drug abuse (administrative discharge board required but waived), authority:  MARCORSEPMAN Par. 6210.5.

Chronological Listing of Significant Service Events:

870322:	State of California Certificate of Death in the case of the Applicant’s Father.

871120:	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.

890731:	Counseled regarding deficiencies, specifically, the illegal use of marijuana.  Necessary corrective actions explained.  Sources of assistance identified.  Disciplinary and administrative discharge warnings issued.

890728:	NAVDRUGLAB [SAN DIEGO, CA] reported Applicant’s urine sample, received 890724, tested positive for [THC].

890917:	NJP for violation of UCMJ, Article 112a:  Illegal drug involvement, specifically THC.
Awd red to E-1, forf of $50.00 per month for 2 months.

891215:	NAVDRUGLAB [SAN DIEGO, CA] reported Applicant’s urine sample, received 891211, tested positive for [THC].

900302:	Counseled regarding deficiencies, specifically, the illegal use of marijuana.  Necessary corrective actions explained.  Sources of assistance identified.  Disciplinary and administrative discharge warnings issued.

900304:	NJP for violation of UCMJ, Article 112a:  Wrongful use of a controlled substance; THC.
Awd forf of $24.00 per month for 1 month.

900304:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by wrongfully using a controlled substance by the San Diego Drug Laboratory on 15 December 1989 specifically; THC.

900304:	Applicant advised of rights and having elected not to consult 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.

900411	Enclosure (4) to Recommendation for Administrative Discharge:  “… counselled concerning the use of illegal drugs.  He was monitored and closely supervised …  However, … personal problems … influenced his decision to return to drug usage as a solution to his problems.  He failed to take advantage of the counseling and assistance available to all Marines.” 

900411:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was misconduct due to repeated drug abuse.  Commanding officer’s comments: [On 16 September 89, (Applicant) received Nonjudicial Punishment (NJP), for wrongful use of an illegal drug (THC).  After this he was counseled concerning the use of illegal drugs, given advice as to where to seek assistance and counseling, and informed that further incidents of this nature could result in Administrative Discharge.  (Applicant) ignored this advice and again received NJP for wrongful use of an illegal drug (THC) on 4 Mar 90.  At no time did (the Applicant) come forward and request counselling or assistance with his drug problem.] 

900509:	SJA review determined the case sufficient in law and fact.

900510:	GCMCA [Commanding General, 4th Marine Division (Rein)] 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 19900912 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:  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the Applicant’s enlistment.  While he may feel his father’s death and his youth were contributing factors, they do not mitigate the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service.  His service record is marred by numerous page 11 counseling entries for deficiencies in performance and conduct and the award of nonjudicial punishment (NJP) on two separate occasions thereby substantiating his misconduct and demonstrating he was unsuitable for further service.  It must be noted that most Marines serve honorably and therefore earn honorable discharges.  In fairness to those Marines, commanders and separation authorities are tasked to ensure that the undeserving receive no higher characterization than is due.  An upgrade to General/Under Honorable Conditions would be inappropriate.  Relief denied.

Issue 2:  A careful review of the record shows the Applicant was properly counseled on his wrongful use of a controlled substance, advised of appropriate corrective actions and given a list of resources with whom “assistance in resolving any future problems” was available.  Relief denied.

Issue 3:  A careful review of the record shows the Applicant acknowledged by signature that he was “afforded an opportunity to consult with a lawyer” prior to both his NJPs.  Additionally, he acknowledged consulting with legal counsel in his letter to his Commanding Officer dated 900304.  Relief denied. 

Issue 4:  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 service in question.  No such error or inequity occurred during the Applicant’s tenure.  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.  However, the NDRB is authorized 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.  The Applicant’s post-service accomplishments, while impressive, do not mitigate his disregard of the rules and regulations that govern good order and discipline in the armed services of our country. The NDRB recognizes serving in the Marine Corps is very challenging.  Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve our country.  It must be noted; most Marines serve honorably and therefore earn honorable discharges.  Relief not warranted.

The applicant is reminded that he is eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Representation at 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 P1900.16D), effective 27 Jun 89 until 17 Aug 95. 

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