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

ex-LCpl, USMC
Docket No. MD05-00313

Applicant’s Request

The application for discharge review was received on 20041130.  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 review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20050324.  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/IN LIEU OF TRIAL BY COURT-MARTIAL, authority: MARCORSEPMAN Par. 6419.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I fully request for review for the type of discharge to be upgraded from Other Than Honorable to Honorable or at least General under Honorable Conditions, so that the reenlistment code that applies to the discharges are applicable to me for reenlistment.

2.  I was given RE-Code 4 and I would like to be able to reenlistment under any RE code that allows reenlistment.

3.  Since my discharge, I HAVE NOT been arrested or have gotten into any trouble with the law or at all.  My conduct has always been in standing with the code and conduct of the Marine Corps and has never changed.

4.  I have knowledge of the MOS (Military Occupational Specialty)’s that are available for Prior Service Members and will be able to move into one should I be able to reenlist.

5.  I would like to submit this document to be reviewed on behalf of my request for the following changes: upgrade discharge type from Other Than Honorable to Honorable/ upgrading reenlistment code form RE-4 to one that allows reenlistment.  [I would like also to be noted that should this come out in my favor I am more than willing to lateral move to any of the MOS’s that are available for Prior Service Enlistment Program boatspaces.]

At the time of my discharge from the Marine Corps I was discharged under the RE code 4 which prevented me to ever be able to reenlist and since that day myself and others believe that was extremely unjust.  Unjust because my case never went to Court Martial and I was falsely charged with the solicitation to a Staff NCO to urinate in a bottle during a drug urinalysis where in fact switching never took place.  I was the one solicited by the Staff NCO to do so (but didn’t) and I never in fact tested positive for ANY drug whatsoever.
I will now recap the events that took place around my discharge.

In March of 1999 I attended a party with friends in which a few were smoking marijuana.  However I personally did not smoke anything at all and was only in a room where it was heavily in the air.

I confided in an outside-of-work friend (Corporal C_ B_ USMCR) about the party in which I felt uncomfortable about.  She promised me confidentiality but later went to a Sergeant D_ (USMC) at the Command and together they wanted to see if they could find out if I would test positive on a urinalysis.

Sgt D_ went to the Commanding Officer (Captain D_ D_) who already ‘had it out for me’ ever since I reported him on racial discrimination charge a year before.  I was the only African American and female at that at this Command.  They decided to arrange a ‘random’ urinalysis but it was more a witch hunt since they really only trying to get a positive test for me.  I later legally found out as did the Commanding Officer that this was however illegal search and seizure and had to have this all thrown out anyway.

The day of the urinalysis I do admit to being nervous because of the party incident, not sure if the contact from the party would show up in my system.  The Staff NCO that was earlier mentioned (Staff Sergeant C_ H_ USMCR) was also an outside-of-work friend and we were in fact very good friends.  She smoked cigarettes and wanted me to stand outside with her while we waited our turn for the urinalysis.  I did as this was a normal thing with us and so I casually confided in her about the party and she said to me, “Well, sometimes that stuff can get in your system like that.” I got more nervous and because I thought about my career and my plans on reenlisting and didn’t want that jeopardized because of some party.
Staff Sgt H_ made sure no one was in earshot of us and said, “I wouldn’t want anything to happen to you, girl.  So look, I have an aspirin bottle in my car and I’ll go in it and we can try switching it somehow.” She appeared to be serious but I immediately shook the suggestion off because I knew I hadn’t inhaled anything and most importantly I had faith in God and I told her, “Nah, that’s OK.”

She said to me, “Good Luck,” and we headed back into the building.  We then noticed 1st Sgt H_ watching us from the building.

I went through with the urinalysis as instructed but was uncomfortable at how the Commanding Officer and the 1st Sgt was always staring at me.

By the next two or three days lst Sgt H_ asked me to come into his office.  He then told me I tested positive for Cocaine.  I almost fell to the floor.  I had never even seen cocaine in my life.  I told him that no way in the world that was true and that I completely could not believe him.  He told me that I probably tested positive for it because of C_ W_, the ex-boyfriend that had physically assaulted me and my command knew of it and knew he done cocaine.  I told him I still did not believe him and to have me retested at a neutral site that very day because I could not trust it there.  I had also demanded this be taken to Court Martial because I knew the Marine Corps order on the drug policy for members.  He was talking about immediately discharging me and the order stated that even if a Service Member tested positive they had an opportunity to go to rehab so at that point I knew I was being railroaded; they were trying to simply get me kicked out.  He agreed and I was taken up north Branch Medical Clinic in Millington TN at that moment.

The next day or so I inquired about my results.  I was told that they all came back negative and I confirmed with Branch Medical Clinic that all was truly negative.  My command agreed to go with their results but now they did not have any positive drug test results on me so this is when they decided to turn Staff Sgt H_ against me and that’s when she turned her story around, to try to save her own career.
I sought legal counsel with Navy Lieutenant P_ and civilian attorney B_ C_ who specialized in military law.  Both went over the facts and found the entire urinalysis illegal search and seizure and the Prosecuting attorney agreed which they then threw completely out.  All they had against me since they knew no switching of urine took place was that I asked her to do it and that was the final charge.  No real switching of urine and not even any positive drug test results.

Later my attorneys were given word by the prosecuting attorney that SSgt H_ did not agree to testify in the Court Martial and would only submit the forced statement against me.

On July 3 1999 I was told after completing a physical that I had tested HIV positive.

I was devastated and went through a great deal of depression, still having to go through with these false charges that that threatened my career.  My Naval attorney suggested that we all a Separation in Lieu of Court Martial so that I would not have to deal with added stress.  I was still foggy minded at the time and did agree.  All charges were dropped and I was separated.

I honestly give this statement: If I would have been able to think with a better mind at that traumatic that period I would have fought my battle at Court Martial.  Neither of the two prosecuting witnesses was going to testify at the trial.  They did not have a strong case at all; I was just at unfortunate state of mind.  I’m not requesting to take this back to court.  I am simply stating that in this particular situation, the punishment was unjust.  As I stated, I never tested positive for Marijuana, Cocaine or any drug for that matter.  I never in my life so much as smoked a cigarette.  Even someone, by Marine Corps and Department of Defense policy, who would’ve tested positive would still get to remain in the service with opportunity for treatment.  And all they had was my word against her word on who initiated switching urine, which still never even happened.  This could possibly sound justifiable to keep me from reenlistment.  I kept a decent record, did excellent work at each command assigned, even got quickly promoted to E-4 quicker than most.  I was and will always be an Outstanding Marine.
All I ask is to have an opportunity to finish my dream, my career.

Sincerely,

S_ M.  S_ (Applicant)”

Documentation

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

None were submitted.
PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		940917 - 950604	COG

Period of Service Under Review:

Date of Enlistment:  950605		Date of Discharge:  990924

Length of Service (years, months, days):

	Active:   04  03  19
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  64

Highest Rank:  Cpl			MOS:  0151

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (10)			Conduct:  4.4 (10)

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, GCM, NDSM, MM, RMB

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT-MARTIAL, authority:  MARCORSEPMAN Par. 6419.

Chronological Listing of Significant Service Events:

950821:	Counseled for deficiencies in performance and conduct.  [Marine Corps Drug policy in accordance with MCO 5300.12.  Applicant admitted to the use of illegal drugs prior to entry into military service in the Marine Corps.  Command obtained a waiver in order to retain Applicant in training.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960130:	Counseled for deficiencies in performance and conduct.  [Unauthorized absence from appointed place of duty from 0730-0845, 960129.]  Necessary corrective actions explained, sources of assistance provided.

970521:	Counseled for deficiencies in performance and conduct.  [Lack of professionalism, poor attitude, belligerent, disrespectful behavior towards senior Marines and apparent disregard of appropriate orders and regulations as evidenced by failure to obey a lawful order by an NCO which is a violation of Article 92 of the UCMJ.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980701:	Counseled for deficiencies in performance and conduct.  [Failure to maintain proper personal appearance in uniform and failure to properly execute the duties as DNCO, i.e., failure to properly secure the safe after being instructed of the duties on numerous occasions.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

981013:	Counseled for deficiencies in performance and conduct.  [My apparent disregard of appropriate orders and duties as DNCO, i.e. Failure to sign Standard Form 702 Security Container Check Sheet after being instructed of my duties on numerous occasions.]  Necessary corrective actions explained, sources of assistance provided.

990901:	Applicant, having consulted with counsel certified under UCMJ Art 27(b), requested discharge for the good of the service to escape trial by court- martial.  In the request the Applicant noted that her counsel had fully explained the elements of the offenses for which she was charged and that she understood the elements of the offenses.  She further certified a complete understanding of the negative consequences of her actions and that characterization of service would be under other honorable conditions.  The Applicant admitted she had violated the UCMJ, Article 80: Attempt to obstruct justice, Article 112a: Wrongful use of marijuana, and Article 134: Solicitation.

990907:	SJA review determined the case sufficient in law and fact.

990907:	Commander, Marine Forces Reserve determined that Applicant had no potential for further service, that separation in lieu of trial by court-martial was in the best interest of the service, and directed discharge under other than honorable conditions by reason of conduct triable by courts-martial.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19990924 under other than honorable conditions in lieu of trial by court-martial (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

Issue 1:  Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question.  No such impropriety or inequity is evident during the Applicant’s enlistment.  In a signed statement, the Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial.  She consulted with counsel and was fully advised of the implications of her request.  The Applicant understood that if discharged under other than honorable conditions, it might deprive her of virtually all veterans’ benefits based upon her current enlistment, and that she might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received therefrom may have a bearing.  The Applicant stated she understood the elements of the offenses with which she was charged.  In her signed request, the Applicant admitted to attempted obstruction of justice and soliciting a fellow Marine to be an accessory after the fact in an attempt to defeat the Marine Corps’ urinalysis program.  The Applicant further admitted to wrongful use of a controlled substance, specifically marijuana.  The Applicant’s wrongdoing is further corroborated by the evidence of record, including signed and sworn statements from other Marines.  Based upon the evidence of record, the Applicant’s statements to this Board disputing her misconduct are simply not credible.  Relief denied.

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’s service was marred by unauthorized absences, lack of professionalism, disrespect, poor attitude, belligerent behavior, disregard for orders, and illegal drug use.  This misconduct resulted in four separate formal counselings and a separation in lieu of trial by court-martial.  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. Navy.  Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service.  Relief is not warranted.

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 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, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided any documentation for the Board to consider.  Relief denied.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code.  Reenlistment policy of the Marine Corps is promulgated by the Commandant, United States Marine Corps, Code MMEA, 3280 Russell Road, Quantico, VA 22134.  Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment.  A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  

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 her discharge at that time.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 
18 Aug 95 until 31 August 2001.

B.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 112a, wrongful use of a controlled substance.

C.  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.

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

E.  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