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

   ex-LCpl, USMC
Docket No. MD04-00634

Applicant’s Request

The application for discharge review was received on 20040303.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests 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 20041008.  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 processed out of the United States Marine Corp for substance abuse with an other than honorable discharge.  I feel that I was not treated fairly during my NIP nor my review board, Therefore hurting my chances for finishing my contract.  Now I was not the best marine, But I was among the best in my MOS, and could still hold my own in the field.  If you look in my record book you will see that this incident cannot outweigh all the positive things that 1 have done in the marine corp.  There is another incident that you will see in my record book that needs to be addressed, which I will also try to do during this statement.

When I received notice that I had popped positive on the urinalysis.  The squadron was on deployment in Germany and I was immediately taken out of my shop and placed on duty in the barracks 24hrs.  On 24hrs.  Off for the rest of the deployment.  Now even though I was the butt of every ones jokes.  I kept my mouth shut and did what I was told cause I figured it was punishment for the urinalysis.  After the squadron returned home I was placed in the tool room on night crew by myself to check In/Out tools.  During my NJP I thought I had a good chance because in my statement to the C.O.  I gave him the name and number of a witness that could have helped me, But he just ignored it and told me that I should of used better judgment, which maybe true but I still think he should have contacted the witness.  So after my NJP where I was busted to CPL and placed on EMI, I was ridiculed even more by members of the squadron no matter the rank.  Even though I received my punishment during my NJP.  I was given extra duty including duty during the Marine Corp ball, placed on funeral detail, put on every working party, and sometimes on night crew I missed chow because no one would watch the tool room while I ate.  I knew then that the squadron hated me and I hated them.  Since my marine corp. days were coming to an end I decided to start preparing for my transition to civilian life.  Even that was no easy task, I had to threaten Msgt L_ with requesting mast before he would move my EMI to the morning hours so that I could take classes in the evening for my FCC license, And it was like pulling teeth to get enrolled in TAPs class.  Well, this went on for over a year and even though I tried not to let it bother me, My attitude along with my temper got worse and I couldn’t take it any more which led to the second NIP in question.

I was now a LCPL and my situation wasn’t looking any better.  I was still very angry, still stuck in the tool room and now I can add financial problems to the mix.  By now I had distanced myself from the majority of the squadron and only spoke to a couple friends.  It finally came time for my review board and I knew I was going to have to answer for my mistakes.  I wasn’t too concerned about the 2nd NIP I had received because I thought I could get them to understand how the constant abuse led me to not care anymore.  Plus I had some great character witnesses and I knew that other than the two NIP’S, there wasn’t anyone the prosecutor could have found to testify against me.  My best witness was captain s_, a fighter pilot whom I worked with when I was attached to VMFA-312 and had the opportunity to work with again in VMFA-142.  The prosecution managed to round up one witness, CWO2 H_ who checked into the squadron as the AMO while the squadron was in German, so I didn’t know him and because I was placed in the tool room when we got home I never worked with him or directly for him.  Despite the fact that gunner H_ didn’t know me he arrived at my review board with nothing but negative things to say about me.  The following day CWO2 H_ apologized to me for the negative statements he made during my review board, and stated that he was instructed to do so by the CO. who did not want me to remain in the corp.  This apology came at too late a time and too high a cost.  In my opinion the boards decision was based on his testimony, But I was told by my appointed attorney that the decision was based on my non-desire to stay in the marine corp.  How could I stay in the marine corp after all that’s happened? Besides I was a staff select and now I’m a LCPL there’s no recovering from that and my peers would never let me forget it.  Anyway I had a lot of good times in the corp. and I learned a lot and if I could change anything about my enlistment, not only would I have not gotten those two NJP’s but I would have taken my’ avionics division officer CWO2 D_’s advice and not select his former squadron when I reenlisted.  He told me the type of things that went on over there but I didn’t listen.

Anyway I’m not writing this statement to point blame, With the skills and discipline that I’ve learned in the marine corp.  I’ve been able to move on with my life.  I have been working steadily as an electrician for over a year, I've received my FCC license, and I'm the proud father of a new baby boy.  The only thing that I'm not proud of is the discharge I received from the military.  I admit that I have made mistakes which I apologize for, but I've paid for these mistakes time and time again since my first NJP and I don't believe I should have to pay for them anymore.  I pray that you will understand my plea and stop this blemish from following me around for the rest of my life.”

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:   USMC		950214 – 991209	HON
	Inactive: USMCR(J)		940713 - 950213	COG

Period of Service Under Review:

Date of Enlistment:  991210		Date of Discharge:  020913

Length of Service (years, months, days):

	Active:    02  09  04
	Inactive:  None

Age at Entry:  23			Years Contracted:  4 

Education Level:  12			AFQT:  59

Highest Rank:  Sgt			MOS:  6317

Final Enlisted Performance Evaluation Averages:
All fitness reports were available for review

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, GCM, NATO, CA, MUC, SSDR (w/1*), MM (2)

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:

991210:	Reenlisted at VMFA 312, MCAS Beaufort, SC.

010614:	NAVDRUGLAB Jacksonville, FL, reported Applicant’s urine sample, received 010608, tested positive for THC.

010715:	NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance.
Awarded forfeiture of $826.00 per month for 2 months, reduction to Cpl.  Not appealed.

020102:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by a positive urinalysis.

020201:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

020203:	NJP for violation of UCMJ, Article 86: UA from place of duty on 020117; violation of UCMJ, Article 92: Violated a lawful order by leaving his security post at 1600, 020117; violation of UCMJ, Article 113: misbehavior of a sentinel on 020117.
Awarded 45 days extra duty, reduction to LCpl.  Not appealed.

020611:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

021002:	SJA review determined the case sufficient in law and fact.

021002:	GCMCA [CG, 4th MAW] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

Partial discharge package

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020913 under other than honorable conditions for misconduct due to drug abuse (A).  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 (B and C).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (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.

The Applicant’s discharge characterization accurately reflects his service to his country during the enlistment under review.  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 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