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

ex-LCpl, USMC
Docket No. MD04-00181

Applicant’s Request

The application for discharge review was received on 20031107.  The Applicant requested the characterization of service received at the time of discharge be changed to honorable.  The Applicant requested a personal appearance hearing before the board in the Washington National Capital Region.  The Applicant did not list a representative on his DD Form 293.  Subsequent to the application, the Applicant obtained representation from the American Legion.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 20040923.  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 Par. 6210.6.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “To whom it may concern:

I, C_ F_ (Applicant) (SS# deleted), am seeking a Honorable Discharge status from the military instead of the discharge I received upon dismissal.  I joined the United States Marines in June of 1995 and served until April of 1999.  During the time I served, I was an outstanding and dedicated Marine.  I began as PFC and because of my determination and leadership skills I was promoted to Corporal.  I served as a squad leader, section leader, and as the NBC NCO of my platoon.  These positions are indicative of my accomplishments while I served in the Marines.

In October of 1998, I received an NJP from my company, which charged me with conspiracy to solicit drugs.  Upon the receipt of this charge, came the following stipulations: reduction in rank, reduction in pay, restriction to the base, and extra military duty.  Simultaneously, my unit was in the process of being deployed so I was transferred to Regiment, where I found out I was being discharged.

Since my discharge in April 1999, the employment I have been able to acquire has not been substantial to my needs.  My request for a Honorable Discharge is important to me and to my future.  Wanting to pursue a career in law enforcement, I applied and was turned down due to my discharge.  Then deciding not to give up, I searched for a skill I enjoyed while I was in the Marines to guide me to another career option.  I attended Truck Driving School.  I ranked 14th in my class out of fifty.  Finding a job in this field has again proven to be difficult due to my discharge.

Due to the numerous rejections in both career paths, I found myself slipping into a depressive state.  I have found that what kept me from becoming further impacted, I needed to keep myself in a positive atmosphere.  I looked for ways to be an asset to my community.  I am an active member at my church. I am the Co-Chairman to the Junior Trustees at my church.  I have also been an active member of my community for today’s youth.  The youth of my community has becoming an important focus in my life.  I have became a sports official at a number of local community centers.  I make sure that I ask the teens I mentor about their schoolwork and emphasize the importance of their education.  I did contribute to the G.I. Bill while in the Marines.  I am disappointed that I missed the opportunity to benefit from the G.I. Bill to further my education.  All these events have made me mature and become a stronger adult.  A change in my discharge would broaden my horizon and put me in a better position to pursue resulting opportunities.  Thank you for taking the time to review my request.

Sincerely,

C_ F_ (Applicant's)
(Applicant's mailing address deleted)
(Applicant's telephone number deleted)”

Additional issues submitted by Applicant’s counsel/representative (American Legion):

“2.  (Equity Issue) On behalf of this former member, we opine that his Under Other Than Honorable Conditions discharge is too harsh in light of his overall service record and therefore warrants the Boards relief.

3.  (Equity Issue) On behalf of this former member, we request that the Board consider provisions of SECNAVINST 5420.1740, 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 5420.1740, enclosure (1), paragraph 1.16, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue in supplement to this Applicant’s petition.

The American Legion’s express purpose in providing this issue and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised. To that end, 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 5420.1740, enclosure (1).

This case is now respectfully submitted for deliberation and disposition.”

Documentation

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

Character reference from Senior Pastor, White Oak Missionary Baptist Church, dated 
   October 7, 2003
Character reference from Chief Deputy Secretary, North Carolina Department of Crime 
   Control and Public Safety, dated October 3, 2003
Character reference from State Trooper, North Carolina Highway Patrol, dated 
   October 17, 2003

Additional documentation submitted for consideration during the hearing (Previously submitted to the Board for the Applicant’s documentary Record Review, NDRB Case MD00-00648.):  

Character reference, dtd December 14, 1999
Character reference, dtd November 2, 1999
Job reference, dtd January 19, 2000
Job reference (Annual Performance Appraisal attached), dtd March 22, 2000

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR (J)		940624 - 950611	COG

Period of Service Under Review:

Date of Enlistment:  950612		Date of Discharge:  990426

Length of Service (years, months, days):

	Active:    03  10  15
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  32

Highest Rank:  Cpl (MOS: 0311, Machine gunner)

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.5 (11)			Conduct:  4.3 (11)

Military Decorations:  GCM

Unit/Campaign/Service Awards:  NDSM, SSDR, MUC, AFSM

Days of Unauthorized Absence:  None

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:

940619:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

960731:	Counseled for deficiencies in performance and conduct.  [Irresponsibility in the specific case of losing your ID for the third time.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

981110:	NJP for violation of UCMJ, Article 81:
Specification: Conspire with another to commit an offense under the Uniform of Military Justice, to wit: wrongful distribution of a controlled substance and in order to effect of the conspiracy he approached LCpl B_ and LCpl L and asked them if they knew anyone who wants to buy marijuana on 0800, 981021.
Awarded forfeiture of $591.00 per month for 2 months, restriction and extra duties for 45 days, reduction to LCpl.  No indication of appeal.

981112:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

981112:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights.

981117:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  The factual basis for this recommendation was your violation of the Uniformed Code of Military Justice, specifically conspiracy to distribute a controlled substance (marijuana).  

990114:	Substance abuse/dependency evaluation: No substance abuse indicated at this time.

990415:	SJA review determined the case sufficient in law and fact.

990416:	GCMCA [Commanding General, 2d Marine Division, II Marine Expeditionary Force] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

001102:	NDRB documentary record review Docket Number MD00-00648 conducted.  Determination:  Discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19990426 under other than honorable conditions for misconduct due to the commission of a serious offense (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:  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 of the discharge’s propriety and equity.  In the Applicant’s case, the Board discovered no impropriety or inequity; thereby, considering the Applicant’s discharge to be proper and equitable.   

The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits.  This issue does not serve to provide a foundation upon which the Board can grant relief.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities.  As stated above, regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

As a Non-Commissioned Officer, Applicant’s solicitation of junior Marines for the purpose of purchasing illegal drugs clearly demonstrated his disregard for Department of Defense and Marine Corps policy concerning illegal drugs as well as the rules and regulations controlling good order and discipline, while validating he had no potential for further service in the Marine Corps.  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 member of the United States Marine Corps.  An upgrade to honorable would be inappropriate.  Relief denied.

Issues 2 & 3:  The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, as indicated above, a procedural impropriety or inequity must have existed during the period of enlistment in question.  No impropriety or inequity is evident 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.  Relief not warranted. 

The following if provided for the Applicant’s edification.  The NDRB has no authority to provided additional review of this case since Applicant’s discharge has been reviewed on two separate occasions.  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case. 

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 31 January 1997 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 81, Conspiracy.

C.  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.  

D.  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.

E.  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