Author: CAP
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Docket No. MD01-00783

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

 ex-Pvt, USMC
Docket No. MD01-00783

Applicant’s Request

The application for discharge review, received 010515, 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 011218.  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, authority: MARCORSEPMAN 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  Since my discharge I have had no problems and have become an active and upstanding citizen as indicated by items listed in documents 2 and 3 above.

2.  My DD 24 does not correctly indicated all of the education I received while serving in the Marine Corps as shown on my DD 214 and proven by the enclosed certificates of completion, indicating a lack of contribution.

3.  My DD 214 does not correctly indicate the proper MOS under which I was classified as proven by my certificate of completion marked document # 1-F and explained in document 3A, paragraph 1 sentence 8-10.

4.  My performance aside the incident resulting in discharge while in the military was deserving of an honorable discharge as shown by documents #1-C through 1-J.

Documentation

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

Copy of DD Form 214
Copy of meritorious mast dated September 11, 1998
Copy of promotion to Lance Corporal dated January 2, 1998
Copy of certificate dated September 17, 1999
Copy of certificate of completion dated June 21, 1999
Copy of certificate of completion dated June 11, 1999
Copy of certificate of completion dated February 5, 1999
Copy of certificate of completion dated November 10, 1998
Copy of certificate from School of Infantry dated September 11, 1998
Copy of record check from City of Lubbock, police department dated May 9, 2001
Statement from applicant dated May 10, 2001
Letter of reference dated April 26, 2001
Letter of reference dated May 1, 2001
Letter of reference dated April 26, 2001

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		980516 - 980518	COG

Period of Service Under Review:

Date of Enlistment:  980519		Date of Discharge:  991103

Length of Service (years, months, days):

	Active:    01  05  15
	Inactive:  None

Age at Entry:  20			Years Contracted:  5

Education Level:  12			AFQT:  84

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.1 (3)			Conduct:  3.1 (3)

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, authority:  MARCORSEPMAN 6210.5.

Chronological Listing of Significant Service Events:

980516:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

990506:	NJP for violation of UCMJ, Article 92:
Specification: Failed to obey a lawful regulation, to wit: barracks policy letter 1-99, by consuming alcohol in the barracks.
Violation of UCMJ, Article 134:
Specification: Violate Florida statue 562.11 by contributing to the delinquency of a minor on 1May99.
Awarded forfeiture of $537.00 per month for 2 months, restriction and extra duties for 45 days, reduction to PFC.  Restriction and extra duty for 15 days suspended for 4 months.  Not appealed.

990715:	NAVDRUGLAB, Jacksonville, FL reports applicant's urine sample, received 990708, tested positive for THC.

990727:	Vacate restriction and extra duty for 15 days awarded at CO's NJP dated 6May99.

990903:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 112A:
	Specification: Wrongfully use marijuana, a controlled substance on 15Jul99.
	Finding: to Charge I and the specification thereunder, guilty.
	Sentence: Forfeiture of $639.00, confinement for 1 month, reduced to Pvt.
	CA action 990903: Sentence approved and ordered executed.

990929:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

990929:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights.

991004:	Medical evaluation for drug abuse found the applicant not to be a drug abuser or drug dependent.  

991007:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was your illegal in-service usage of a controlled substance as evidenced by your summary court-martial held on 3 September 1999. 

991019:	SJA review determined the case sufficient in law and fact.

991029:	GCMCA [Commander, Marine Corps Air Bases, Eastern Area] 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 991103 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).

Issue 1.  The applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  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.  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, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct.  The applicant did not provide sufficient documentation to warrant an upgrade to his discharge.  He 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.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.  Relief denied.

Issues 2 and 3. Concerning the applicant’s DD-214, the NDRB has no authority make changes. The applicant can write to the Headquarters, United States Marine Corps, Code MMSB-20, Quantico, VA 22134 to request changes. 

Issue 4.  The Board disagrees with the applicant’s assertion that his overall performance was deserving of an honorable discharge.  The applicant used illegal drugs.  Drug abuse warranted processing for separation, normally under other than honorable conditions.  His performance prior to the drug abuse doesn’t mitigate his use of illegal drugs.  The discharge was proper and equitable.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 Aug 95 to Present. 

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, wrongful 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 “afls10.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

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/A9221/A9453/A9445/A9439