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

Docket No. MD01-00845

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

 ex-LCpl, USMC
Docket No. MD01-00845

Applicant’s Request

The application for discharge review, received 010611, 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-Drug abuse (with admin discharge board required but waived), authority: MARCORSEPMAN Par. 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

Prior to the documentary discharge review, the applicant introduced a letter as his issues.
Documentation

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

Letter from Applicant
Copy of Certificate of Completion (CNE)
Copy of Certificate of Appreciation (Exemplary Volunteer Services)
Copy of Honors Graduate Award (Basis Electronics Technology)
Copy of Certificate of Excellence (Microsoft Certified Professional System Engineer)
Copy of Letter of Confirmation from Regional Addiction Prevention Inc

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		801124 - 841123	HON
	Inactive: USMCR(J)		None

Period of Service Under Review:

Date of Enlistment:  850125		Date of Discharge:  880912

Length of Service (years, months, days):

	Active:    03  04  07
	Inactive:  None

Age at Entry:  22			Years Contracted:  4 

Education Level:  12			AFQT:  46

Highest Rank:  SGT

Final Enlisted Performance Evaluation Averages (number of marks): All enlisted performance reports were available to the Board for review.
	After reduction to Cpl:  Proficiency-  4.5 (4)		Conduct-   3.4 (5)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rife Expert (2^nd), SSDR, GCM

Days of Unauthorized Absence:  101

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:

850125:	Reenlisted at VMA-311 MAG-13 for 4 years.

850531:	Counseled for deficiencies in performance and conduct.  [Several disturbances in base housing, and several periods of UA].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

860306:	Counseled for deficiencies in performance and conduct.  [Failure to provide support for his dependent wife and child].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

860911:	Counseled for deficiencies in performance and conduct.  [Failure to render child support as you were legally bound to do so.  You were verbally counseled on 860728 by the Executive Officer concerning the said offense, and as of this date you have failed to comply].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

880303:	NJP for violation of UCMJ, Article 112a: Did on or about 880208, at H&MS-11 and/or surrounding communities, unlawfully use cocaine, a controlled substance; violation of UCMJ, Article 91: Did on or about 0730, 880219, wrongfully disobey a lawful order from GySgt L.F. White, to attend the Substance Abuse Awareness Course; violation of UCMJ, Article 86: Did on or about 0730, 880219, wrongfully fail to be at his appointed place of duty at the time prescribed to wit: JDAAC five day course; violation of UCMJ, Article 86: Did on or about 1300, 880219, wrongfully fail to be at his appointed place of duty at the time prescribed to wit: H&MS-11 QA; violation of UCMJ, Article 86: Did on or about 1000, 880223, wrongfully fail to be at his appointed place of duty at the time prescribed to wit: H&MS-11 QA; violation of UCMJ, Article 86: UA from 1100, 880229 to 1445, 880229.
Awarded: Forfeiture of $400.00 pay per month for 2 months (forfeiture of $400.00 pay per month for 1 month suspended for 6 months)
extra duties for 30 days, reduction to E-4.  Not appealed.

880308:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

880316:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

880321:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was a recent NJP held on 880303, for unlawful use of cocaine amongst other violations of the UCMJ.  

880414:	NJP for violation of UCMJ, Article 86: UA from 0731, 880405 to 0730, 880406; violation of UCMJ, Article 86: Did on or about 1200, 880325, wrongfully fail to be at his appointed place of duty to wit: EPD; violation of UCMJ, Article 86: Did on or about 1600, 880325, wrongfully fail to be at his appointed place of duty at the time prescribed to wit: EPD; violation of UCMJ, Article 86: Did on or about 1300, 880326, fail to be at his appointed place of duty to wit: EPD; violation of Article 86: Did on or about 1300, 880402 fail to be at his appointed place of duty to wit: EPD.
Awarded  Extra duties for 10 days, reduction to E-3.  Not appealed.

880418:	To UA.

880421:	From UA (3 days).

880427:	Applicant waived rights to Administrative Discharge Board.

880502:	UA from 880502 to 880510 (8 days).
 
880516:	To UA.
 
880524:	SJA review determined the case sufficient in law and fact.

880613:	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.

880711:	From UA (55 days).

880808:	To UA.

880912:	From UA (35 days).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 880912, in absentia, 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 stated that the outpatient treatment he received at MCAS El Toro did not suffice his requirements for treatment.  The record stated that on 880219 he failed to attend a prescribed substance abuse awareness course.  The applicant used illegal drugs. Drug abuse warranted processing for separation, normally under other than honorable conditions.  The discharge was proper and equitable.  Relief denied.

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.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210 MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16C), Change 4, effective 29 Jul 87 until 26 Jun 89.

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 86, unauthorized absence; Article 91, disobey a lawful order; 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/A9317/A9221