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

 ex-PFC, USMC
Docket No. MD04-01390

Applicant’s Request

The application for discharge review was received on 20040901.  The Applicant requested the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record review.  The Applicant listed the Disabled American Veterans as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041222.  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.  “Ladies and gentlemen of the board.  The reason for my OTH discharge was misconduct due to drug abuse.  My discharge was based soley on drug-related conduct and not on prior service achievement which I think was unfair.  I fully understood the military’s zero tolerance policy on drug use.  When I used the drug, it was an occweird situation.  I was at a party at San Diego State University.  Towards the end of the night a female approached me and we talked.  She then lit up a black and mild cigar.  She asked if I wanted to smoke some and I said yes.  Thinking it was only tobacco I hit it.  After 3 pulls I realized it was weed and gave it back to her.  That same night I reported to the GCO that, that had happened.  The next morning my unit had an all hands urinallysis.  Obvisiolly I popped.  I pled my case and my command told me that I would be retained.  My CO, XO OpsO, and other officers told me this.  During the middle of Opperation Iraqi Freedom we changed commanding officers and he denied my package from the start.  He didn’t listen to the other officers and didn’t even take a look at my past achievements to see what kind of marine I was.  I feel that this was unfair because I know a lot of marines that popped more than once and got retained.  Those marines didn’t have nearly as much achievements as I did.  This is my reason for requesting an upgrade of my discharge so I can receive my GI Bill and start over and go to college.  Thank you.”

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

2.  “Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current Other Than Honorable (OTH) discharge to that of Honorable.

The FSM served on active service from July 23, 2001 to December 19, 2003 at which time he was discharged due to completion of active service / misconduct, due to drug abuse.

The FSM, based on submittal of the application, request a records review for an upgrade of the current OTH discharge, stating he was discharged due to drug related conduct with no consideration to his prior military achievements and believes he was un-fairly treated. 

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174C.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the applicant.

Respectfully,

K_ L. G_
National Service Officer”

Documentation

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

Applicant’s DD Form 214
Assignment ltr, dtd 12 Apr 02
Recommendation for NCO of the Quarter (2 pages), dtd 13 Dec 02
BIR (3 pages)
BTR (2 pages)
Promotion Warrant, dtd 2 September 2002
Certificate of Commendation, dtd 01 July 2002
Forwarding Endorsements (2 pages)
Training Certificate, Introduction to Microsoft Excel 97, dtd 21 November 202
Completion Certificate, dtd 16 Aug 02
Completion Certificate, dtd 19 December 2002
Completion Certificate, Green Belt, dtd 17 May 2002
Meritorious Mast, dtd 16 November 2001

PART II - SUMMARY OF SERVICE

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

	Active:   			None			HON
	Inactive: USMCR (J)		000913 - 010722	COG

Period of Service Under Review:

Date of Enlistment:  010723		Date of Discharge:  031219

Length of Service (years, months, days):

	Active:    02  04  27		Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  39

Highest Rank:  Cpl			MOS:  7041 (Aviation Operations Specialist)

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.6 (*)			Conduct:  4.5 (*)

Military Decorations:  CertCom, MeritM

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  None

	*  No marks found in record.  Averages extracted from Commanding Officers recommendation for administrative separation letter to the Commanding General.

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:

000912:	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.

021213:	NAVDRUGLAB [San Diego, CA] reported Applicant’s urine sample, received 021210, tested positive for THC.

030108:	SACO/DACO eval/comment:  Client currently does not meet criteria for drug dependence/abuse.

030123:	NJP for violation of UCMJ, Article 112a:  Wrongful use of a controlled substance.
Awd red to LCpl/E-3, forf of $678.45 per month for 2 months, and 45 days restriction and extra duties.  Not appealed.

030709:	Counseled on Veterans Administrative (VA) drug and alcohol rehabilitation treatment availability.

030806:	NJP for violation of UCMJ, Article 134:  Conduct unbecoming a Marine.
Violation of UCMJ, Article 92:  Disobeying a regulation.  
Awd 45 days restriction and extra duties.  Not appealed.

030908:	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’s “positive urinalysis for (THC).”  

031008:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by the Applicant’s “positive urinalysis for (THC).”  

031008:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all his rights to include the right to obtain copies of the documents used to support the basis for the separation.

031119:	NJP for violation of UCMJ, Article 92 (2 specs):  Disobeying a lawful order.
Specification 1:  Going to Mexico without prior Command consent or proper documentation.
Specification 2:  Drinking under the legal age limit.
Awd red to PFC/E-2, forf of $645.00 per month for 2 months, and 45 days restriction.  Not appealed.

031120:	SJA review determined the case sufficient in law and fact.

031212:	GCMCA [Commanding General, 3d Marine Aircraft Wing] 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 20031219 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).

Issues 1 & 2:  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the Applicant’s enlistment.  While he may feel that his discharge “was unfair” and “based sole(l)y on drug-related conduct and not on (his) prior service achievement, the Applicant’s disobedience of the orders and directives regulating good order and discipline in the naval service demonstrated he was unsuitable for further service.  His service record is marred by award of non-judicial punishment (NJP) on three separate occasions thus substantiating the misconduct for which he was discharged.  Additionally, the record shows the Applicant signed a document stating his understanding of the Marine Corps’ policy on illegal drug use in order to secure an enlistment waiver for his pre-service drug use.   It must be noted that most Marines serve honorably; thereby, earning honorable discharges.  In fairness to those Marines, commanders and separation authorities are tasked to ensure the undeserving receive no higher a service characterization than is due.  An upgrade to honorable conditions would be inappropriate.  Relief denied.

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, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.   The Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.  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 P1900.16F), effective 01 September 2001 until Present. 

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.
 
D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity. 

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 “http://Boards.law.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:

		Secretary of the Navy Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023