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

ex-PFC, USMC
Docket No. MD00-00995

Applicant’s Request

The application for discharge review, received 000811, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to Convenience of the Government.  The applicant requested a documentary record discharge review.  The applicant listed the Veterans of Foreign Wars as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010301.  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/INVOL DIS (BOARD WAIVED) (MISCONDUCT) DRUG ABUSE, authority: MARCORSEPMAN Par. 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

The following issues are the reasons I believe my discharge should be upgraded to Honorable.  If you disagree, please explain in detail why you disagree.  The presumption of regularity that might normally permit you to assume that the service acted correctly in characterizing my service as less than honorable does not apply to my case because of the evidence I am submitting.

1.  Clemency is warranted because it is injustice for me to continue to suffer the adverse consequences of a bad discharge.  I fully realize the gravity of my mistake and I fully regret what happened, and I would have prefer-red to stay in the military, however, I accept full responsibility
I only wish to be able to put my mistake behind me and by receiving an honorable discharge; it would allow me to my life back together again.

2.  My average conduct and efficiency ratings/behavior and proficiency marks were good. (See attached proficiency ratings)

3.  I received awards and decorations (see Service Records/DD-214)

4.  I had combat service.

5.  My record of promotions showed I was generally a good service member.  Additionally, I was placed in leadership positions, because of my high degree of trustworthiness, professionalism, attitude and motivation.

6.  There were other acts of merit.

7.  I have been a good citizen since discharge.

8.  My record of court-martial convictions indicates only an isolated offense.  This was the only negative mark on my service record in 4+ years of military service.

9.  My ability to serve was impaired by my youth and immaturity. (See Promotion to Sgt Recommendations).

10.  Applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning his application.  His records were reviewed on January 11, 2001 and the following comments are hereby submitted.

The applicant initially enlisted in the United States Marine Corps on April 23, 1990.  He is a Persian Gulf combat veteran.  He has been awarded the National Defense Service Medal, Sea service Deployment Ribbon (3rd award), Southwest Asia Service Medal (4th award), Combat Action Ribbon, Kuwait Liberation Medal, Navy Unit Commendation, Meritorious Unit Commendation, and a GOOD CONDUCT MEDAL.  In accordance with the Department of Defense DIRECTIVE, Discharge Review Board (DRB) Procedures and Standards we ask for consideration of E4.3.3.1.1.

We refer this case to the Board for their careful and compassionate consideration and request the applicant's discharge be reviewed for an upgrade to Honorable Conditions.

Documentation

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

Copy of DD Form 214 (Member 1)
Forty-seven pages from applicant's service record
Statement of character dated October 15, 1999
Statement of character dated November 8, 1999
Statement of character dated November 29, 1999
Statement of character dated November 3, 1999
Statement of character dated November 2, 1999
Statement of character dated November 1, 1999
Statement of character dated October 15, 1999
Statement of character dated November 19, 1999
Statement of character dated October 12, 1999
Statement of character, unsigned and undated
Statement of character dated November 11, 1999
Statement of character dated November 5, 1999
Statement of character dated December 10, 1999
Statement of character dated November 5, 1999
Statement of character dated November 5, 1999
Statement of character dated November 5, 1999
Statement of character dated November 5, 1999
Statement of character dated November 8, 1999
Statement of character dated November 8, 1999

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		890428 - 891207	???
		   USMCR(J)		900416 - 900422	COG

Period of Service Under Review:

Date of Enlistment:  900423		Date of Discharge:  941230

Length of Service (years, months, days):

	Active:    04  08  08
	Inactive:  None

Age at Entry:  19			Years Contracted:  6

Education Level:  12			AFQT:  56

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.5 (13)		Conduct:  4.4 (13)

Military Decorations:  None

Unit/Campaign/Service Awards:  Letter of Appreciation, NDSM, SSDR (3), SASM (4), CAR, KLM, NUC, MUC, GCM

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE/INVOL DIS (BOARD WAIVED) (MISCONDUCT) DRUG ABUSE, authority:  MARCORSEPMAN Par. 6210.5.

Chronological Listing of Significant Service Events:

900423:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

931201:	Applicant informed eligible but not recommended for promotion to Sergeant for the month of February 1994 because of lackadaisical attitude, lacks maturity.

940426:	Applicant informed eligible but not recommended for promotion to Sergeant for the months of April, May, and June 1994 because of displaying traits not indicative of an NCO.

940505:	NAVDRUGLAB [Jacksonville, FL], reported applicant’s urine sample, received 940425, tested positive for cocaine.

940608:	CAAC Evaluation: Diagnostic Impression: Drug abuse.

940728:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 112A.
	Specification: Wrongfully used cocaine between 15Apr94 and 25Apr94 at an unknown location.
	Finding: to Charge I and the specification thereunder, guilty.
	Sentence: Forfeiture of $622.00, restriction for 60 days, reduced to PFC.
	CA action 940728:  Sentence approved and ordered executed except for that portion extending to restriction, will be executed.  Service of the sentence to restriction is deferred effective 940728, and will not begin until 940805, unless sooner rescinded by competent authority.

940914:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

940914:	Applicant advised of his rights and having consulted 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.

940914:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was summary court martial of 28 July 1994 for wrongful use of cocaine.

941213:	SJA review determined the case sufficient in law and fact.

941218:	GCMCA [Commanding General, 2d Marine Division, MarForLant, Camp Lejeune, NC] 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 941230 under other than honorable conditions for misconduct due to drug abuse (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

The Board carefully considered the applicant’s several issues discussing his service prior to his drug abuse offense and disagrees with the applicant’s assertion that his service merits an upgrade of his discharge to honorable.  As requested by the applicant, the following detailed response is offered for the applicant’s edification.

 Relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts.  With respect to a discharge or dismissal adjudged by a court-martial case tried under the Uniform Code of Military Justice, the action of the NDRB extends only to a change in the discharge or dismissal for purpose of clemency. (B, art IV) 

The applicant's case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  The NDRB found the applicant’s service record devoid of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded.  In fact, the Board found the applicant had been afforded thorough and detailed counseling on his deficiencies, beyond that normally provided, and was offered many avenues to correct his pattern of failing to display traits required of a Marine NCO.  Relief on this basis is therefore, denied.

In a signed statement, the applicant waived all his rights to an administrative discharge review board and requested discharge under other than honorable conditions.  He consulted with counsel and was fully advised of the implications of his request.  The applicant understood that if discharged under other than honorable conditions, it might deprive him of virtually all veterans' benefits based upon his current enlistment, and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received therefrom may have a bearing.  The applicant stated he understood the elements of the offenses with which he was charged.  He admitted he was guilty of violating Article 112a.  Relief denied.

The Board found that the applicant’s age, education level, and test scores qualified him for enlistment.  While he may feel that his immaturity was a factor that contributed to his actions, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service.  The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as honorable.  Under other than honorable conditions is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The applicant’s service was marred by award of nonjudicial punishment (NJP) for offenses triable by court-martial and by adverse counseling entries.  The applicant’s misconduct included violation of Article 112a, unlawful use of controlled substances, in violation of the Marine Corps zero tolerance policy on illegal drug use.  The applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful disobedience of the orders and directives which regulate good order and discipline in naval service, and falls short of that required for an honorable characterization of service.  An upgrade to honorable would be inappropriate.  Relief is therefore denied.
 
The NDRB recognizes that serving in the Marine Corps is very challenging.  
Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country.  It must be noted that most Marines serve honorably and well and therefore earn honorable discharges.   In fairness to those Marines, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due. (XX, Part IV)  While the NDRB respects the fact that the applicant tried, his service is equitably characterized as being performed under other than honorable conditions. Relief is not warranted.

The following is provided for the applicant’s edification.  The NDRB is authorized to consider 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.  However, there is no law or regulation that provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the service.  Normally, to permit relief, an error or injustice must be found to have existed during the period of enlistment in question.  No such error or injustice is evident in the applicant’s service record.   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. With the exception of the extensive evidence provided by the applicant that his extended family considers his character above reproach, the applicant's efforts need to be more encompassing than those provided.  The applicant should have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs in order for consideration for clemency based on post-service conduct.  At this time the applicant has not provided sufficient documentation of good character and conduct.  Therefore no relief will be granted.  The applicant is reminded that he remains eligible for a personal appearance hearing provided that an application is received within 15 years from the date of discharge.

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.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 112a, unlawful use of a controlled substance.

C.  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.  

D.  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.

E.  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