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

FOR OFFICIAL USE ONLY

 ex-LCpl, USMC
Docket No. MD05-01386

Applicant’s Request

The application for discharge review was received on 20050804.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions).  The Applicant requests a documentary record discharge review.  The Applicant designated the Texas Veterans Commission as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060517.  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:

“I feel that the type of Discharge that I was given is unjust.  At my last duty station (off post) I was arrested for possession.  I was in the process of fighting it in court because it wasn’t mine; which I informed the Police and my Command.  My command informed me that I need to plead guilty under adjudication (which meant classes) so that it would be done and over with instead of continuing to fight.  So I did.  Within 2 months my command started the paperwork to put me out of the Marine Corp. with the type of discharge listed on the front.  I wanted to keep fighting the Court Case but the Command wanted it over.  I jointed the Marine Corp to become the best at whatever I do, but do to some bad advice and influence of my command I stopped fighting the court case.  Please re-evaluate my discharge and grant my request for upgrade.”

Representative submitted no issues.

Documentation

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

Character Reference ltr from D_ W. P_, Athletic Director, Head Football and Track
	Coach, Episcopal High School, dtd January 12, 2005
Character Reference ltr from D_ S_, RN MSN, dtd July 18, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	20000125 - 20000202	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20000203		Date of Discharge:  20021024

Length of Service (years, months, days):

Active:    02  08  22
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  30

Years Contracted:  4

Education Level:  16				AFQT:  65

Highest Rank:  LCpl				MOS:  3521

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0 (7)				Conduct:  3.8 (7)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  National Defense Service Medal, Rifle Marksman Badge

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:

UNDATED:	Pre-service waivers for age, dependents, drug use, weight wavier granted.

991215:	Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

000531:	NAVDRUGLAB, reported Applicant’s urine sample tested positive for cocaine.  [Extracted from administrative remarks dated 000608.]

000608:	NJP for violation of UCMJ, Article 112a: At CoH, MCTBn, SOI, MarCorScols, CamLej, between 000415 and 000515, wrongfully used cocaine.
	Award:  Forfeiture of $465.00 per month for 2 months, restriction for 60 days, reduction to E-1.  Not appealed.

000608:	Counseling:  Advised of deficiencies in performance and conduct (Specifically, illegal use of a controlled substance cocaine as verified by NAVDRUGLAB R 311656Z May 00 BYZ.), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.

000825:	Counseling:  Concerning CG, MarCorScols, CLNC, letter 1910 SJA1 of 22 Aug 00, specifically the suspension of discharge for a period of 12 months beginning on 000822.  Advised if refrain from further misconduct during this suspension period and meet appropriate standards of conduct performance, will be eligible to receive a discharge under honorable conditions at the end of enlistment.

020411:	Counseling:  Advised of deficiencies in performance and conduct (Art 92, Failure to obey order or regulation.  These actions will not be tolerated.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020510:	Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of May, June 02 because of lack of judgment, leadership, maturity, failure to meet PFT standards.  Applicant chose not to make a statement.

020618:	Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of July 02 because of lack of judgment, leadership, maturity, and pending civilian court.  Applicant chose not to make a statement.

020813:	Civil Conviction:  Superior Court of California, County of San Diego for violation of HS11350(a), Felony drug possession.
Sentence:  Fine $500.00, formal probation.  Imposition of sentence is suspended for 3 years.  Contribute to cost of placement in drug treatment program as directed by the Court.  Cooperate with Probation Officer or authorized representative as directed in preparation of financial evaluation.  Participate and successfully complete a drug treatment program.  Report to Probation Dept, Vista.

020821:	Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of Sep 02 because of civil felony conviction.  Applicant chose not to make a statement.
 
020926:	Applicant notified of intended recommendation for discharge by reason of misconduct due to commission of a serious offense with characterization of service of other than honorable conditions.  The factual basis for this recommendation was conviction by the state of California for a felony drug possession. 
 
020926:	Applicant advised of rights and having consulted with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

020926:	Commanding Officer, 1st Maintenance Battalion recommended Applicant’s discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense, felony drug possession, and subsequent conviction of aforementioned offense in the state of California.  Commanding Officer’s comments:  “Lance Corporal J_(Applicant) was convicted on 13 August 2002 on felony charges of drug possession and sentenced to pay a $500.00 fine and serve 1 year on probation.  This event is the culmination of many proceedings with Lance Corporal J_(Applicant).  Prior to this, Lance Corporal J_(Applicant) received a page 11 and a 6105 counseling as well as a Battalion level Non-Judicial punishment for cocaine use.  Additionally Lance Corporal J_(Applicant) is pending another hearing for the charge of grand theft auto.  Because of his current probation, Lance Corporal J_(Applicant) is non-deployable and therefore unable to meet the requirements of the Marine Corps.  Lance Corporal J_(Applicant) is a burden to this command and his behavior is not in keeping with the standards of a Marine.”

021010:	SJA review determined the case sufficient in law and fact.

021016:	GCMCA, 1st Force Service Support Group directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.

UNDATED:	Commanding General, 1st Force Service Support Group request to Commanding General, Marine Corps Base, Camp Pendleton for BAR ORDER in the case of Lance Corporal D_ L. J_ (Applicant).  Request that the Applicant be permanently barred from Marine Corps Base Camp Pendleton.

	Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20021024 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 NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and/or the reason for discharge if such change is warranted.  There is no evidence of impropriety or inequity in the Applicant’s discharge.  The Applicant was convicted in civil court for possession of controlled substances.   A Marine may be processed for separation for commission of a serious or civilian offense if the specific circumstances warrant separation and a punitive discharge would be authorized for the offense under the UCMJ.  The UCMJ considers drug possession a serious offense and the Applicant’s misconduct is clearly documented, therefore, relief is denied.   

The Applicant claims that he was in the process of fighting the civil charges but his command told him to plead guilty “so that it would be done and over”.   The record contains no evidence of any wrongdoing by the government or anyone involved in the discharge process and the Applicant has not provided persuasive evidence to the contrary.    Relief denied.

When the service of a member of the 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’s service was marred by nonjudicial punishment proceedings for violation of Article 112a (wrongful use, possession of controlled substances) of the UCMJ and a civil conviction for felony drug possession.  In addition, the Applicant was not recommended for promotion on 3 occasions and received 3 retention warnings, to include a suspended discharge, which he violated by continued misconduct.  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. Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

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 additional evidence related to this discharge.  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 01 September 2001 until Present).

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, possession, etc. of a controlled substances.

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