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

ex-PFC, USMC
Docket No. MD05-00182

Applicant’s Request

The application for discharge review was received on 20041103.  The Applicant requested the characterization of service received at the time of discharge be changed to honorable.  The Applicant requested a documentary record review.  The Applicant did not list a representative on his DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050118.  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 served the corps well until my martial situation started to deteriorate.  I and my spouse sought marriage counseling but it was not effective.

Gyst H_ did not know a lot about me when I was transferred to his unit when he wrote the 99 Jan 06 letter.  I was transferred there to help me since I was not a slacker.

I believe that my discharge should be upgraded because of the mitigating circumstances that caused a behavioral change.  I am interested in becoming a police officer and I ride with them but the rules are strick about military discharges.  I am trying my best to be a productive citizen and I ask for leinency.”

Documentation

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

Applicant’s DD Form 214
Certificate of Commendation, dtd 9 October 1998
Meritorious Mast, dtd 12 March 1998
Letter of Appreciation, dtd Mar 08 1999 (Draft)
Letter of Appreciation, dtd Mar 08 1999
Letter of appreciation, dtd 9 Feb 1998
Character reference, dtd March 23, 2003
Character reference, dtd September 29, 2004
Character reference, dtd September 2, 2004

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR (J)		960328 - 960520	COG

Period of Service Under Review:

Date of Enlistment:  960521		Date of Discharge:  990811

Length of Service (years, months, days):

	Active:    03  02  21
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  33

Highest Rank:  LCpl			MOS:  3531 (Motor Vehicle Operator)

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (9)			Conduct:  4.3 (9)

Military Decorations:  MeritM, LtrApp (2), CertCom

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, authority:  MARCORSEPMAN 6210.5.

Chronological Listing of Significant Service Events:

990225:	NJP for violation of UCMJ, Article 86:  … Failed to be at his appointed place of duty …
Awarded 14 days restriction and extra duties.  7 days restriction and 14 days extra duties susp 6 mos.  Not appealed.

990312:	SACO/DACO eval/comment:  Recommended for FSC Counseling for marital issues and Administrative Separation for Illicit Drug Use.

990416:	NAVDRUGLAB [San Diego, CA] reported Applicant’s urine sample, received 990412, tested positive for cocaine and THC.

990514:	NJP for violation of UCMJ, Article 112a:  … wrongfully use Cocaine and THC both controlled substances.
Awd red to PFC/E-2, forfeiture of $400.00 per month for 2 months.  Forf susp for 6 mos.  Not appealed.

990514:	Counseled for deficiencies in performance and conduct.  [Illegal drug involvement.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990707:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by the Applicant’s “illegal use of cocaine and THC.” 

990709:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights including the right to obtain copies of the documents used to support the basis for the separation.

990709:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was the Applicant’s “illegal use of cocaine and THC.”   

990726:	SJA review determined the case sufficient in law and fact.

990730:	GCMCA [Commanding General, Marine Corps Base Hawaii] 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 19990811 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:  While the Applicant may feel his deteriorating “martial situation” was a contributing factor to his misconduct; it does not mitigate his disobedience of the orders and directives regulating good order and discipline in the Marine Corps.  The Board discovered no impropriety or inequity and considers his discharge to be proper and equitable.  A service characterization of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a United States Marine.  The record is devoid of any evidence the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  The Applicant’s service record is marred by award of nonjudicial punishment (NJP) on two separate occasions for unauthorized absence and illegal use of controlled substances.  The Applicant’s summary of service clearly reflects his misconduct and demonstrated he was unsuitable for further service. A discharge upgrade to honorable would be inappropriate.  Relief denied.

The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested in the issue.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  As noted above, the Board discovered no impropriety or inequity and considers his discharge proper and equitable.  This issue does not serve to provide foundation upon which the Board can grant relief.  
 
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.  The NDRB is authorized to consider outstanding 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.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  Evidence of continuing educational pursuits, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.  The Applicant has not provided sufficient documentation of good character and conduct to mitigate his misconduct while on active duty.  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 additional documentation to support any claims of post-service accomplishments 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 31 August 2001. 

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		Secretary of the Navy 	Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023