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

ex-Pvt, USMC
Docket No. MD02-00893

Applicant’s Request

The application for discharge review, received 020607, requested that the characterization of service on the discharge be changed to general (under honorable conditions).  The applicant requested a documentary record discharge review.  The applicant designated the American Legion as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030410.  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, as submitted

1.  (Equity Issue)  His violation of the UCMJ notwithstanding, this former member opines that his overall service record is sufficient to warrant release under honorable conditions.

2.  (Equity Issue)  This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		961029 - 961126	COG

Period of Service Under Review:

Date of Enlistment:  961127		Date of Discharge:  000209

Length of Service (years, months, days):

	Active:    03  02  13  (Does not exclude lost time)
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  GED			AFQT:  50

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.91 (9)		Conduct:  3.85 (9)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Expert Badge, NATO Medal, AFSM (w/1*),
AFEM, JMA, SSDR (w/1*), CoA

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:

971001:	Eligible but not recommended for promotion to LCpl for month of Aug-Oct 97 due to failure of the semi-annual PFT and poor overall performance.

981130:	Eligible but not recommended for promotion to Cpl for 1st quarter 1999 due to lack of initiative and need for supervision.

990319:	Eligible but not recommended for promotion to Cpl for 2nd quarter 1999 due to lack of initiative and constant supervision needed.

990505:	Counseled regarding deficiencies, specifically, lack of professional knowledge, initiative, and the need for constant supervision.  Necessary corrective actions explained, sources of assistance identified, and disciplinary and administrative discharge warnings issued.

990610:	Eligible but not recommended for promotion to Cpl for Jul 99 due to lack of professional knowledge.

990711:	Eligible but not recommended for promotion to Cpl for month of Aug 99 because of needing constant supervision.

990813:	Eligible but not recommended for promotion to Cpl for month of Sep 99 because of substandard MOS proficiency.

990825:	Counseled regarding deficiencies, specifically, lack of professional knowledge, initiative, and the need for constant supervision.  Necessary corrective actions explained, sources of assistance identified, and disciplinary and administrative discharge warnings issued.

990909:	Eligible but not recommended for promotion to Cpl for 4th quarter 99 because of substandard MOS knowledge.

990922:	NAVDRUGLAB Jacksonville, FL reported applicant’s urine sample, tested positive for LSD. (Extracted from counseling entry dtd 991001.)

991001:	Counseled regarding deficiencies, specifically, illegal drug involvement, Lysergic acid Diethylamide (LSD) usage identified through urinalysis confirmed by Navy Drug Lab Jacksonville, FL msg 221633Z SEP 99.  Necessary corrective actions explained.

991014:	Summary Court-Martial.
	Charge I:  violation of UCMJ Article 112a:  Specification: Did, at an unknown place, on or about 990824, and on or about 990907, wrongfully use LSD.
	Findings:  to Charge I and specification 1 thereunder, guilty.
	Sentence:  Forfeiture of $639.00 pay per month for 1 month, confinement 29 days in the brig, reduction to E-1.
	CA 991014:  Sentence approved and ordered executed.  The Base Brig, Camp Lejeune, NC, is designated as the place of confinement.

991014:	To confinement as part of sentence of SCM.

991018:	Clinical Psychologist, ATF, Camp Lejeune:  Applicant was evaluated and substance abuse/dependence was not found.  Isolated incident, no treat-ment indicated at this time.  Applicant was found psychologically fit for full duty and returned to same.  Psychologist recommend Applicant be processed for administrative separation per MCO P1900.16.

991115:	Released from confinement and transferred to CO, 2d Marine Regiment for duty.

000124:	SJA review determined the case sufficient in law and fact.

000124:	GCMCA (Commanding General, 2d Marine Division, 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 000209 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:  The Applicant contends, through counsel, that his overall service record is sufficient to warrant a recharacterization of his service to honorable.  With regard to separation, drug abuse (use) warrants a characterization of service normally under other than honorable conditions.  A characterization of honorable or general (under honorable conditions) is not authorized unless a Marine's record is otherwise so meritorious that an other than honorable characterization clearly would be inappropriate.  The records the Board reviewed showed there were no mitigating or extenuating factors or any entries so meritorious as to warrant an upgrade of the Applicant's discharge.  Further, the Board found that the Applicant had two derogatory Page 11 counselings, seven non-recommenda-tions for promotion, and the summary court-martial for drug use.  Relief on this basis is therefore denied.

Issue 2:  The Applicant contends, through counsel, that the Board assess his post-service conduct to determine if an upgrade to his characterization of service is warranted.  The Applicant, however, has provided no post-service documentation for the Board to consider.  Relief at this time is denied.

The following is provided for the edification of the Applicant.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge even though there is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service.  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 may be considered.  Verifiable proof of 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 credible evidence of a substance-free lifestyle are examples of documents that may be provided to the Board to receive consideration of relief based on post-service conduct.

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 P1900.16E), effective 31 Jan 97 until Present. 

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