Author: CAP
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Docket No. MD02-00663

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

 ex-PFC, USMC
Docket No. MD02-00663

Applicant’s Request

The application for discharge review, received 020409, requested that the characterization of service on the discharge be changed to general/under honorable conditions and that the RE Code be changed.  The Applicant requested a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representation by the Disabled American Veterans.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030116.  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, as submitted

1.  I made a mistake as an uninformed young person and lost the best career opportunities I was ever offered. In dealing with under-privileged children who came from all works of life, I have succeeded in assisting them by using everything the Corp taught me.  Even after the UA I received a Meritorious Mast.  I knew I was in trouble but even then, I did not lay down my pack. I am a success in life because of the Corp.  I ask for an opportunity to part of an organization which offers an opportunity to belong to an elite group of individuals who truly are the world's 911. I have one blemish on my record as a Marine.  I have spent the last 7 years proving to be a productive responsible human being.  The only thing I ever wanted to be was a Marine.

2.  Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Naval Discharge Review Board of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we continue to support the contentions as set forth by the Applicant, in his request that he be given the opportunity to upgrade his Discharge from a Under Other than Honorable Discharge) to a Marine Corp Honorable Discharge. The (FSM) separated from the US Marine Corp on July 05, 1995 for a period of over (2) years 11 months and 7 days and received (2) UCMJ Article of Punishments, during this term of service.  The (FSM) has no recommendations of conduct for this term of service to include in his decoration for discharge up-grade. The (FSM) desires to have his Discharge up-graded due to the fact that he feels he was unfairly treated by the Marine Corp since they did not enlist counsel or use any source of help or enable others with similar actions to educate or aid serviceman.  The (FSM) violations of drug abuse and uttering of checks are severe in the very nature that they occurred on active duty.  The (FSM) actions can be personally attributed to the stressful military duty that leads him to experience the using of drugs and the uttering of checks while on active duty.  The (FSM) should take have enlisted other avenues to correct his negative actions, but since he did not act in a positive manner, he should take full responsibility for his actions.  The (FSM) now respectfully requests an equitable standard be applied as well as equity in treatment in seeking the boards' approval to afford him the opportunity to receive and an up-grade of (Under Other Than Honorable Conditions Discharge to a General (Under Honorable Conditions) Discharge.  The (FSM) sincerely hopes that by respectfully requesting and being granted an Up-Grade of his Discharge, and the reasons for his violations Drug Abuse and Check Uttering and his subsequent dismissal for his (2) UCMJ Article's of punishment from the US Marine Corp.  The (FSM) feels his military accomplishments of service are a matter of Supreme Honor and Respect he will cherish throughout his lifetime.  The (FSM) also states he had always tried to achieve Honor and Respect during his entire term of enlistment of military duty in the Naval Service but just failed on these to cited incidents.  We respectfully request that the (FSM) be given complete and duly consideration by the board.  We also respectfully request that the board consider each reasonable explanation submitted by the (FSM) who now wishes to seek to correct the injustices that occurred to him in fulfilling his military duty in the United States Naval Services.  We ask for the Boards 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,

Documentation

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

Character reference from Program Director, Boys and Girls Club of Billings and Yellowstone Country dated March 1, 2002
Character reference dated February 28, 2002
Character reference dated February 28, 2002
Statement from Applicant, undated
Applicant's DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USMCR(J)		910823 - 920727	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  920728		Date of Discharge:  950705

Length of Service (years, months, days):

	Active:    02  11  08
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  63

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (9)			Conduct:  4.3 (9)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, MM (3)

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:

930615:	Counseled for deficiencies in performance and conduct.  [Uttering of bad checks.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

930628:	NJP for violation of UCMJ, Article 134 (4 specs):
Specification 1: Utter worthless check for $10.88 to AAFES on 6 May 93.
Specification 2: Utter worthless check for $13.50 to AAFES on 11 May 93.
Specification 3: Utter worthless check for $140.60 to Camp Foster Commissary, Okinawa, JA on 18 Apr 93.
Specification 4: Utter worthless check to a fellow Marine Private.
Awarded forfeiture of $213.00 per month for 1 month, restriction and extra duties for 14 days.  Forfeiture and restriction suspended for 3 months.  Not appealed.

930629:	Counseled for deficiencies in performance and conduct.  [Uttering worthless checks, indebtedness.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950317:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 950313, tested positive for THC.

950413:	NJP for violation of UCMJ, Article 112A:
Specification: Wrongfully use marijuana on 10 Mar 95.
Awarded forfeiture of $250.00 per month for 2 months, restriction for 60 days, reduction to PFC.  Forfeiture for 1 month and restriction suspended for 3 months.  Not appealed.

950421:	Counseled regarding illegal drug involvement; specifically, being identified through urinalysis testing, NavDrugLab San Diego, CA #894313, type of drug; THC.  Advised of processing for administrative separation for misconduct is mandatory per MCO P1900.16.

950425:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

950502:	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.

950502:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was positive urine sample test for THC confirmed by NAVDRUGLAB San Diego, msg R172036Z Mar 95. 

950515:	SJA review determined the case sufficient in law and fact.

950518:	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 950705 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).

Issue 1.  There is credible evidence in the record that the Applicant used illegal drugs.  Drug abuse warranted processing for separation, normally under other than honorable conditions.  No other narrative reason more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation.  While he may feel that a lack of counseling and education from his command were factors that contributed to his actions, the record clearly reflects his 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.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  Relief is therefore 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 inequity must have existed during the period of enlistment in question.  No such error or inequity 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, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation 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.  Relief not warranted.

The Applicant 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.  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 P1900.16D), effective 27 Jun 89 until 17 Aug 95. 

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 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

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/A9301/A9221/A9217/A9439/A9445/