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

   

ex-Pvt, USMC
Docket No. MD04-00264

Applicant’s Request

The application for discharge review was received on 20031120.  The Applicant requested the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requested a documentary record review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040827.  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-Drug abuse (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “My discharge was inequitable because it was based on one isolated incident in 36 months of service with no other adverse action.  I was offered no other redeeming penalty beside an other than Honorable discharge, with a promise of an upgraded discharge in a year.”

Documentation

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

Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   			None			HON
	Inactive: USMCR (J)		870904 - 880711	COG

Period of Service Under Review:

Date of Enlistment:  880712		Date of Discharge:  910412

Length of Service (years, months, days):

	Active:    02  04  01 (Accounts for lost time.) 
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  35

Highest Rank:  LCpl  (MOS:  0311 Rifleman)

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.8 (8)			Conduct:  3.8 (8)

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  901113-910411 (150)

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct-Drug abuse (administrative discharge board required but waived), authority:  MARCORSEPMAN Par. 6210.5.

Chronological Listing of Significant Service Events:

880612:	Initial enlistment contract documents admission of pre-service marijuana experimentation.  Enlistment waiver granted. Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

901113:	Special Court Martial:
	Charge I: violation of the UCMJ, Article 80:
	Specification: Attempt to steal a car stereo on 900710.
	Charge II: violation of the UCMJ, Article 81:
	Specification: Conspire … to commit larceny on 900710.
	Charge III: violation of the UCMJ, Article 109:
	Specification: Willfully and wrongfully destroy property on 900710, to wit: automobile vent window.
	Charge IV: violation of the UCMJ, Article 121:
	Specification 1: Steal a pair of black trousers ...
Specification 2: Steal four stereo control knobs on 900710.
	Findings: to Charge I, II and IV and specifications thereunder, guilty.  Charge III and the specification thereunder were dismissed by the military judge.
	Sentence: Confinement for 6 months, forfeiture of $400 per month for 5 months, reduction to E-1.
	CA 910209: Sentence approved and ordered executed.

901113:	Applicant found fit for confinement.

910214:	NJP for violation of UCMJ, Article 112a:
Specification: Wrongfully use marijuana on 901113.
Awarded forfeiture of $356.00 per month for 2 months.  Not appealed.

910412:	DD Form 214: Applicant discharged under other than honorable conditions by reason of misconduct due to drug abuse, authority:  MARCORSEPMAN Par. 6210.5.

** Applicant’s discharge package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19910412 under other than honorable conditions for misconduct due to drug abuse (A).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this, the Board found that the discharge was proper and equitable (B and C).  The Board applied the presumption of regularity of governmental affairs in this case in the absence of a complete discharge package (D).    

Issue 1:  The Applicant states, his “discharge was inequitable because it was based on one isolated incident in 36 months of service with no other adverse action.”  There is credible evidence in the record the Applicant used illegal drugs.  Drug abuse warrants processing for separation, normally under other than honorable conditions.  The Applicant’s 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 is evident during the Applicant’s enlistment.  Additionally, the Applicant’s service record is marred by award of a Special Court-Martial for attempting to steal a car stereo, conspiracy, and wrongful appropriation on top of the nonjudicial punishment (NJP) he received for illegal drugs use.  The Applicant’s summary of service clearly reflects his disobedience of the orders and directives regulating good order and discipline in the naval service, while demonstrating he was unsuitable for further service. An upgrade to general (under honorable conditions) would be inappropriate.  Relief denied.

The Applicant contends he was told he could have his discharge upgraded “in a year.”  There is no law or regulation that authorizes a discharge to be automatically upgraded based solely on the passage of time, or good conduct in civilian life, subsequent to leaving the service.   The Board’s regulations limit its review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, as stated above, the Board discovered no impropriety or inequity; thereby, considering the Applicant’s discharge to be 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 additional documentation to support any claims of post-service accomplishments 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 P1900.16D), 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 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

C.  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.

D.  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.  

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