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

ex-PVT, USMC
Docket No. MD04-00059

Applicant’s Request

The application for discharge review was received on 20031008.  The Applicant requested the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requested a personal appearance hearing before the board in the Washington National Capital Region.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.  The Applicant listed The American Legion as his representative on his DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040628.  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/INVOL DIS (BOARD WAIVED) (MISCONDUCT) DRUG ABUSE, authority: MARCORSEPMAN Par. 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Issue 1:  “On or after 2 June 1994 I was assigned Maj S A F_ as my defense Counsel. 

On 14 July Major F_ informed me that he would no longer represent me.  He told me to sign the attached letter releasing him of his responsibility.

The lette I signed on 14 July 1994 paragraph 4 stated “I hereby request that I be detailed another defense counsel to handle my case”

Counsel was never furnished.

I never waived my right to counsel after 2 June 1994. In fact until Major F_ dropped me on 14 July 94 I had counsel.

I requested new counsel on 14 July 94 but was never given counsel.

On 18 August 94 I was given a summery court martial without counsel and received a other than honorable discharge.  I never waived my right to counsel as the NAVMC 118(13) shows.”

Additional issues submitted by Applicant’s counsel/representative (AMERICAN LEGION):

Issue 2:  “Equity Issue:  Based on our review of evidentiary record and on behalf of behalf of this former member, we request that the Board consider provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.
_______________________________________________________________________

In accordance with 32 C.F.R., section 724.166, and SECNAVINST 5420.174C, enclosure (1), paragraph 1.16, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the following comments in support of this Applicant’s petition.

Review of the service record reflects that this Applicant had satisfactory overall PRO/CON marking of 4.3/4.1 and was issued the NDSM, SSDR, SASM (w/star), AFEM, JMUA and SRB.  He was convicted by SCM on 940818 for VUCMJ, Art. 134.  Following due process notifications, he was discharged Under Other Than Honorable Conditions due to misconduct as authorized by MARCORSEPMAN, Par. 6210.5.

Essentially, as noted on DD Form 293 and attachment, this Applicant contends that his due process was violated because he did not have counsel at his SCM.  He has submitted a letter dated 940714 that released his defense counsel of his duties and he maintains that he was never assigned another one that he wanted and clearly deprived him of his right to counsel.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist and support this former member in resolving any improprieties or inequities in the character and basis for discharge.  Moreover, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 U.S.C., section 1553, and set forth in 32 C.F.R., part 724 and SECNAVINST 5420.174C, enclosure (1).

Documentation

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

Applicant’s ltr to the Board, dtd May 26, 2003
Release from Duties as Detailed Counsel, dtd 14 Jul 94
Applicant’s DD Form 214
Record of Conviction by Court-Martial, dtd 940818

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None			HON
	Inactive: USMCR (J)		910522 - 910722	COG

Period of Service Under Review:

Date of Enlistment:  910723		Date of Discharge:  941108

Length of Service (years, months, days):

Active:    03  02  23 (Includes lost time.)	Inactive:  None

Age at Entry:  29			Years Contracted:  4 

Education Level:  16			AFQT:  69

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (8)			Conduct:  4.0 (8)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, SASM (w/1 star), AFEM, JMUC

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE/INVOL DIS (BOARD WAIVED) (MISCONDUCT) DRUG ABUSE, authority:  MARCORSEPMAN Par. 6210.5.

Chronological Listing of Significant Service Events:

910508:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

940602:	Applicant advised of rights and having elected to consult with counsel certified under UCMJ Article 27B, elected to accept trial by Summary Court-Martial and waive his right to be “represented by a civilian/military lawyer.”

940615:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by Applicant’s “abuse of a controlled substance, specifically, METHAMP.”

940615:	Applicant advised of rights and having elected not to consult with 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.

940818:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 134 (112a).
	Specification:  Wrongful use of a controlled substance, ie: Amp/Meth.
	Finding:  to Charge I and the specification thereunder, guilty.
	Sentence:  Red to pay grade E-1, conf for 30 days, forf of $554.00.
	CA action 940819:  Sentence approved and ordered executed.

940902:	Medical evaluation for drug abuse found the Applicant to be a drug abuser, not dependent.	

940915:	Apologized and confessed in writing to “wrongfully use(ing) amphetamine/methamphetamine” “on or about or between 12 May 1994 and 17 May 1994.”

940916:	SACO/DACO evaluated by Medical Officer and diagnosed as being a drug and alcohol abuser, non-dependent, and not entitled to treatment in conjunction with discharge.  Address of local VA Facility was provided.

940919:	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 “tested positive for use of a controlled substance.”

941027:	GCMCA [Commanding General, 1st 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 19941108 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:  There is credible evidence in the record the Applicant used illegal drugs.  Mandatory processing for separation is required for Marines who abuse illegal drugs.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  The Board found no indication in the record the Applicant was inequitably or improperly treated or denied due process.  The evidence of record does not support the Applicant’s allegation, that he was denied his right to legal counsel.  The Applicant was allowed access to legal counsel prior to his summary court-martial and the proceedings were conducted in accordance the "Rules for Court-Martial, Rule 1301(e)".  Relief denied.

Issue 2:  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 enlistment in question.  No such error or inequity occurred during the Applicant’s enlistment.  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 outstanding post-service factors in the recharacterization of a discharge, to the extent that 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, an employment record, documentation of community service, certification of non-involvement with civil authorities and evidence of a substance free lifestyle, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct.  The Applicant is reminded that he remains 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 a personal appearance hearing is recommended but not required.  Relief denied.

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