Author: CAP
Last saved by: Department of the Navy
Company: NCPB

Docket No. MD99-01113

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

 ex-PFC, USMC
Docket No. MD99-01113

Applicant’s Request

The application for discharge review, received 990817, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge 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 000424.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  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 (with admin discharge board required but waived), authority: MARCORSEPMAN Par. 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  My discharge was inequitable because it was based on one incident in 30 months of service with no other adverse action.
Since my discharge one of the persons involved in trying to make my life in the Marine Corps a short lived experience (Gunnery Sergeant H_ Lima 4/10 2^nd Marine Division) had been demoted for urinating outside of the officers quarters in GTMO Bay Cuba.  The reason I believe I was set up to be discharged is that Cpl C_ who was from the same unit Lima 4/10 had snuck a hand grenade back from Fort Bragg, NC in the door panel of my 5 ton 9/3 truck which I was in charge of.  I was not liked by Cpl C_, not Gunnery Sergean H_ therefore when I threatened to turn him in for smuggling live ammunition my life and my military career were in jeopardy immediately and was used in threatening me almost daily.
Please note that since my discharge I have received 13.6 college credits, some of which are attached, have 4 children, a wife of 13 years, have coached little league baseball and soccer, am a current member of the Cape Fear Rugby Football Club, and employed as an assistant service manager at a car dealership.
I do have witnesses if there is a need for verification.  Thank you.

Documentation

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

Copy of awards from Terminix Interational, Inc dated December 12, 1986, October 9, 1987
Copy of certificate for continuing education course entitled Introduction to Pest Control dated September 20, 1991 and How to Manage Projects, Priorities and Deadlines March 1994
Copy of Outstanding Academic Achievement in 1999
Copy of Honor Roll Award dated June 10, 1999
Copy of Honor Roll dated June 15, 1999
Copy of Student Council Award dated June 10, 1999
Copy of DD Form 214
Appreciation letter from a satisfied customer dated May 6, 1999
Thank you note from a satisfied customer undated
Copy of complement letter dated May 12, 1999
Thank you note from a satisfied customer dated August 12, 1999 

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		821223 - 830913	COG

Period of Service Under Review:

Date of Enlistment:  830914		Date of Discharge:  860313

Length of Service (years, months, days):

	Active:    02  06  00
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  53

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  NMF			Conduct:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

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

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

Chronological Listing of Significant Service Events:

830927:	Applicant identified as a fraudulent enlistee by reason of breaking and entering.  Applicant placed on Stop Orders S-2305-83, waiver W-2851.

831018:	Investigation reveals no substantiation of fraud.  Investigation closed.

821223:	Initial enlistment contract documents admission of pre-service marijuana experimentation.  Enlistment waiver was not required. Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

850412:	NJP for violation of UCMJ, Article 112A: Wrongfully use a controlled substance, to wit: marijuana on 850220.
	Award:  Forfeiture of $200 per month for 2 months, restriction and extra duty for 45 days, reduction to PFC.  Forfeiture for 2 months suspended for 4 months.  No indication of appeal in the record.

850415:	NAVDRUGLAB Norfolk, VA msg R 080854Z Mar 85:  Applicant's drug usage confirmed by urinalysis testing on 850220.

851004:	NAVHOSP Jacksonville FL msg 040908Z Oct 85 ZYB:  Applicant's drug usage confirmed by urinalysis testing on 850918.

851104:	NJP for violation of UCMJ, Article 112A:
Specification: Use a controlled substance, to wit: marijuana on 850918.
Awarded forfeiture of $358.00 per month for 2 months, restriction and extra duties for 45 days, reduction to PFC.  Forfeiture of $358.00 for 1 month suspended for 6 months.  Not appealed.

851204:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

851209:	Applicant advised of his 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.

851211:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was 2 NJP's for drug abuse.

860103:	SJA review determined the case sufficient in law and fact.

860114:	GCMCA [Commanding General, 2d Marine Division, FMF] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

860122:	Commanding Officer requested discharge dated be modified from 24 Jan 86 to 3 Feb 86 due to operation to repair an inguinal hernia.  Operation currently scheduled for 28Jan86.

860305:	Discharge dated modified to read NLT 11 March 1986 vice 3 February 1986.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 860313 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).

In the applicant’s second issue, he implies that a permissive doctrine exists whereby one in the military is allowed a “single misdeed”.  The Board believes that the applicant is confusing this with the civilian world wherein some offenses are treated with leniency because they are a first time incident on an otherwise clear record.  No such leniency exists in the military.  The applicant is responsible for his actions and must accept the consequences of his misdeeds.  The Board will not grant  relief on the basis of this issue.

Outstanding post-service conduct, 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, can be considered.  In determining whether a case merits a change based on post-service conduct, the NDRB considers the length of time since discharge, the applicant's record of community service, employment, conduct, educational achievements, and family relationships.  In reviewing the applicant’s post service, the Board was impressed with the efforts he has begun to make in attempting to recoup his reputation which has been sullied by his misconduct in the Navy.  However, it is the Board’s opinion that this post-service conduct is not of such magnitude to outweigh the applicant’s misconduct.  Therefore, relief will not be granted at this time.  The applicant is reminded that he remains eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at a personal appearance hearing is highly recommended.  The possibility of favorable action in the applicant’s case will increase with the amount of time he maintains his status as a positive member in his community.  Verifiable documentation of such a lifestyle is essential.  The applicant is encouraged to continue his community service, remain sober, and apply for a personal appearance hearing.  
 
Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210 MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16C), Change 2, effective 15 Apr 84 until 28 Jul 87.

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 obtain a copy of DoD Directive 1332.28 by writing to:

		DA Military Review Boards Agency
		Management Information and Support Directorate
		Armed Forces Reading Room
		Washington, D.C.  20310-1809

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
		Washington Navy Yard
		720 Kennon Street SE Rm 309
		Washington, D.C.  20374-5023

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
INDEX:  A6600/A9455/A9235/A9217/A9303/A9221