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

FOR OFFICIAL USE ONLY

 ex-LCpl, USMC
Docket No. MD05-01145

Applicant’s Request

The application for discharge review was received on 20050629.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051216.  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 by reason of misconduct due to the commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“My discharge was inequitable because it was based on one isolated incident in approx. 75 months of otherwise exemplary service.  I have 2 Good Conduct Medals, and my last two duty stations (II MEF SOTG, 3/6 in Afghanistan) both reflect that I have served my country in keeping with the highest traditions of the Marine Corps.”

Applicant’s Remarks: 

“As I stated earlier, I am in Prison on a drug conspiracy charge.  I was bullied into a plea agreement, and have since fired that attorney.  I have then taken every available avenue in an attempt to clear my name.  My collateral attack (28 U.S.C. 2255) is pending, which may release me on time served or overturn my conviction.  My clemency request was submitted immediately after I heard of my separation from the Marine Corps and I am yet to receive a response.  If the Federal Government fails to acknowledge my service to my Country, it would mean a great deal to me if the Marine Corps would.  Semper Fidelis.”

Documentation

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

Applicant’s DD Form 214 (Member 4)
USMC Fitness Report (1610)  (4 pages)
Character Reference ltr from J_ P. G_, Jr., SSgt USMC, dtd May 25, 2004
Computer Print Out of Marine on Line, Individual Awards Report, dtd February 11, 	2004
Combat History, dtd July 19, 2004  (2 pages)
Awards, dtd July 19, 2004
Master Brief Sheet (2 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19951227 – 19961203	COG
	Active:    USMC		19961204 – 20000307	HON

Period of Service Under Review:

Date of Enlistment:  20000308		Date of Discharge:  20040730

Length of Service (years, months, days):

Active:    04  04  22  (Does not include lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  509 days
	Confinement:		  None

Age at Entry:  22

Years Contracted:  4 

Education Level:  12				AFQT:  84

Highest Rank:  SGT			MOS:  0311/8541

Final Enlisted Performance Evaluation Averages (number of marks):  Enlisted performance reports were available to the Board for review.

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  National Defense Service Medal, Marine Corps Good Conduct Medal (2d Awd), Joint Service Achievement Medal, Armed Forces Expeditionary Medal, Sea Service Deployment Ribbon (4th Awd), Humanitarian Service Medal, Armed Forces Service Medal, Navy Unit Commendation, Joint Meritorious Unit Award, Certificate of Appreciation, Rifle Qualification Badge (Expert 3d Awd), Pistol Qualification Badge (Expert 3d Awd).

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.6.

Chronological Listing of Significant Service Events:

000308:	Reenlisted this date.

030309:	Applicant arrested by the Nebraska State Police for numerous charges to include possession with intent to deliver over 16 pounds of cocaine.  Applicant is in the hands of civilian authorities. [Extracted from Applicant’s USMC Fitness Report, dated 20030529.] 

030317:	United States District Court for the District of Nebraska.  Applicant indicted for violation of three counts of Title 21, United States Code Section 846, 841, and 853, pertaining to conspiracy to distribute and possess with the intent to distribute 500 grams or more of a mixture or substance containing a detectable amount of cocaine and 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine.

030421:	Applicant enters into agreement with United States.  Applicant agrees to plead guilty to count I of the indictment charging a violation of Title 21, United States Code, Section 846, conspiracy to distribute and possess with the intent to distribute 500 grams or more of a mixture or substance containing a detectable amount of cocaine and 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine.   

030708:	Commanding Officer, 3rd Battalion, 6th Marines, notifies Applicant of intended recommendation for discharge with the least favorable characterization of service under other than honorable conditions by reason of commission of a serious offense.  The factual basis for this recommendation is by reason of illegal possession of cocaine.

031009:	United States Attorney, District of Nebraska sends letter to Commanding Officer, 3rd Battalion, 6th Marines.  Applicant has been convicted in civil court in the United States District Court for the District of Nebraska.  
	The Applicant was sentenced to the United States Bureau of Prison for a term of 87 months to be followed by 3 years of supervised release, a special assessment of $100, forfeiture of over $6,000 in cash and their automobile.

040506:	Commanding Officer, 2d Marines, recommended to Commanding General, 2d Marine Division, that the Applicant be discharged under other than honorable conditions by reason of a commission of a serious offense.  

040719:	An Administrative Discharge Board, based upon preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to commission of a serious offense, that such misconduct warranted separation, and recommended discharge under other than honorable conditions.  The Applicant was not present when the Administrative Discharge Board was convened.  Counsel for the Applicant stated that the Applicant was informed of his rights concerning counsel and his rights pursuant to the Marine Corps Separation and Retirement Manual (MARCORSEPMAN), paragraphs 6304 and 6309.  Counsel for the Applicant waived the reading of rights before the Administrative Discharge Board and the Senior Member accepted the wavier.  Counsel for the Applicant indicated that the Applicant understood his rights before the Administrative Discharge Board.  

040720:	Commanding Officer, 2d Marine Regiment, 2d Marine Division, recommended to Commanding General, 2d Marine Division, II Marine Expeditionary Force, that the Applicant be discharged under other than honorable conditions by reason of misconduct due to commission of a serious offense.  The factual basis for this recommendation is that an administrative discharge board found that the allegations were supported by a preponderance of the evidence.  

040726:	SJA review determined the case sufficient in law and fact.

040726:	Commander, 2d Marine Division, II Marine Expeditionary Force, advised the Commandant of the Marine Corps, that the Applicant will be discharged under other than honorable conditions by reason of misconduct due to commission of a serious offense.

040730:	DD Form 214:  Per MCO 1900.16F SNM (Applicant) is in an absentee status and beyond military control.  A final physical and or separations brief was not completed.  SNM (Applicant) failed to outprocess with DPAC Separations and Parent Command.  SNM (Applicant) failed to turn in Medical, Dental Records and Check-out sheets.  SNM (Applicant) not available for signature, in hands of civilian authorities.

Service Record Book contains a partial Administrative Discharge package. 
	Service Record Book was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040730 by reason of misconduct due to the commission of a serious offense (A and B) with a service characterization of under other than honorable conditions.  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).  The Board presumed regularity in the conduct of governmental affairs (E).

The Applicant states his discharge was inequitable because it was based on one isolated incident in approximately 75 months of otherwise exemplary service.  Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  In the United States District Court for the District of Nebraska, the Applicant’s agreed to plead guilty to one count of violation of Title 21, United States Code, Section 846, conspiracy to distribute and possess with the intent to distribute 500 grams or more of a mixture or substance containing a detectable amount of cocaine and 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine.  This is a violation of UCMJ Article 112a, and is considered a serious offense, thus substantiating the misconduct for which he was separated.  Regulations limit the Board’s review to a determination of 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.  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 18 Aug 95 until 30 Jan 97).

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 distribution of, or, with intent to distribute, wrongful possession, manufacture, introduction, or wrongful importation of or exportation of cocaine, methampetamine.

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.

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.  

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