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

 ex-Pvt, USMC
Docket No. MD04-00600

Applicant’s Request

The application for discharge review was received on 20040224.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable or general/under honorable conditions.  The Applicant requests a documentary record  review.  The Applicant listed the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041001.  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 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I was young I do not feel I should have to suffer a lifetime for a small mistake.”

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

2.  “Equity Issue:  Based on our review of evidentiary record and on 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 above issue and following statement in supplement to this Applicant’s petition. 

Review of the service record reveals that this former member maintained satisfactory PRO/CON markings of 4.4/4.4 and earned the NDSM and RSS.  On 020829, he was convicted by SCM of VUCMJ, Art. 121 (2 specs).  On 011009, he was awarded NJP for VUCMJ, Art. 112a.  He was processed for an UOTHC discharge that was suspended for 12 months.  His violation of UCMJ, Art. 121 in August 2002 vacated the suspension.  Following due process notifications, he was discharged Under Other Than Honorable Conditions due to the misconduct as authorized by MARCORSEPMAN, Par. 6210.5.

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because it is unfair for him to have to continue to suffer the stigma of his UOTHC discharge.  He has not submitted any additional documentation for consideration.

The American Legion’s express purpose in providing this statement 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 5420.174C, 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:

Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		010418 - 010610	COG

Period of Service Under Review:

Date of Enlistment:  010611		Date of Discharge:  021022

Length of Service (years, months, days):

	Active:    01  04  12
	Inactive:  None

Age at Entry:  20			Years Contracted:  5

Education Level:  12			AFQT:  77

Highest Rank:  PFC			MOS:  0311

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.6 (3)			Conduct:  3.5 (3)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, RSS

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MARCORSEPMAN 6210.5.

Chronological Listing of Significant Service Events:

010417:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

011003:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 010928, tested positive for cocaine.

011009:	Counseled for deficiencies in performance and conduct.  [Use of a controlled substance, to wit: cocaine.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

011011:	NJP for violation of UCMJ, Article 112A:
Specification: Wrongfully used cocaine between 010909 to 010923.
Awarded forfeiture of $521.00 per month for 2 months, restriction for 60 days.  Not appealed.

011017:	Medical evaluation for drug abuse found no substance abuse.

011017:	Applicant informed of substance abuse treatment at a VA Medical Center after discharge.

011024:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

011024:	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 and to submit a statement.

011025:	Applicant’s statement.

011025:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was use of cocaine, as identified by NAVDRUGLAB, Jacksonville, FL message dated 010907 and Applicant’s statement.  

011031:	Commanding Officer, SOI, recommended retention with reassignment to Infantry Training Battalion and the discharge be suspended for 12 months.  The factual basis for this recommendation was your use of cocaine, as identified by positive urinalysis test results.  

011121:	SJA review determined the case sufficient in law and fact.

011203:	GCMCA [Commanding General, Marine Corps Base, Camp Lejeune, NC] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

011221:	SJA review determined the case sufficient in law and fact.

011221:	GCMCA [Commanding General, Marine Corps Base, Camp Lejeune, NC] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.  Discharge suspended for a period of 12 months.

020829:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 121 (3 specs):
	Specification 1: Steal car stereo equipment on 020824, of a value of $786.00, the property of a PFC.
	Specification 2: Steal a Sony Play Station 2 on 020824, a value of $425.00, the property of a PFC.
	Specification 3: Steal a CD/Cassette/FM/AM portable stereo on 020824, a value of $220.00, the property of a Sgt.
	Finding: to Charge I and the specifications thereunder, guilty.
	Sentence: Forfeiture of $736.00, confinement for 29 days, reduced to E-1.
	CA action 020905: Sentence approved and ordered executed the punishment of reduction to E-1 and forfeiture.   Given credit for 32 days restriction and 5 days pre-trial confinement.  Confined for 8 days.

020829:	Applicant notified of intended request to the Commanding General that he vacate your suspended administrative discharge under other than honorable conditions by reason of misconduct due to drug abuse.

Undated:	Applicant acknowledged receipt of CO 3d Battalion, 8th Marines letter.

020829:	Commanding Officer requested to vacate suspended administrative separation awarded 011221 and that Applicant be discharged under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was Applicant’s continual pattern of misconduct.  

021003:	NJP for violation of UCMJ, Article 112A:
Specification: Wrongfully use cocaine on 020917.
Awarded forfeiture of $552.00 per month for 2 months, restriction and extra duties for 45 days.  Not appealed.

021008:	SJA review determined the case sufficient in law and fact.

021008:	GCMCA [Commanding General, 4th Marine Expeditionary Brigade (AT)] directed vacation of 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 20021022 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 that the Applicant used illegal drugs.  Drug abuse warranted processing for separation.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

Issue 2.  The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question.  No such inequity or impropriety 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, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that may be provided to receive consideration for relief, based on post-service conduct.  The Applicant’s evidence of post-service conduct was found not to mitigate his misconduct sufficient to warrant an upgrade to his discharge.  Relief not warranted.

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.  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 P1900.16F), effective 01 September 2001 until Present. 

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