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

Docket No. MD02-00973

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

 ex-PVT, USMC
Docket No. MD02-00973

Applicant’s Request

The application for discharge review, received 020626, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a documentary record discharge review.  The Applicant listed Disabled American Veterans as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030331.  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, as submitted

[Statement from Disabled American Veterans]
1. After a review of the Former Service Members (FSM) DD Form 293 Application for the Naval Discharge Review Board of Discharge of 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 (Under Other Than Honorable Conditions) Discharge to a (General Discharge Under Conditions) Discharge.  The (FSM) entered the US Marine Corp for a very short period in which he was in Boot Camp.  He was allowed to go home on scheduled Christmas to be with his family and friends.  During a social function with several friends he abused drug substances.  The (FSM) after returning from leave was required to take a mandatory drug test in which he was positive for substance abuse and was subsequently separated from the Marine Corp Under Other than honorable conditions.  The (FSM) desires now to have his (Under Other than Honorable) Discharge up-graded to a General (Under Honorable Conditions Discharge from the US Marine Corp. The (FSM) past behaviors he exhibited and short term of service that lead to his discharge he now feels can be personally attributed to immaturely and inability to handle the stressful military life that lead him to act out in inappropriate way on leave. 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 his (Under Other Than Honorable) Discharge to an General (Under Honorable Conditions) Discharge.  The (FSM) sincerely hopes that by respectfully requesting and being an Up-Grade of his Discharge and truthfully giving a explanations citing the reason for his past military abuses of the Marine Corps substance Rules and policy and his subsequent dismissal for US Naval Services he may receive some consideration.  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 almost entire term of enlistment of military duty in the Navy Service, but just failed on this short period of enlistment. 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 wishes to seek correct the mistakes he make and the negative behavior he exhibited and that occurred to him in fulfilling his military duty in the United States Marine Corp. 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.

Documentation

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

Resume (2 pages)
Request for a Certificate of Eligibility
Request for Certificate of Veteran Status 

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		870715 - 870825	COG

Period of Service Under Review:

Date of Enlistment:  870826		Date of Discharge:  880331

Length of Service (years, months, days):

	Active:    00  07  06
	Inactive:  None

Age at Entry:  17			Years Contracted:  4 

Education Level:  12			AFQT:  46

Highest Rank:  PVT

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.15 (2)			Conduct:  3.15 (2)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Marksman Badge

Days of Unauthorized Absence:  None

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:

870711:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

880201:	Counseled for deficiencies in performance and conduct (Lack of self- discipline and violation of the UCMJ).  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

880203:	NJP for violation of UCMJ Article 112a: On or about 880108 did wrong-fully use THC, a scheduled I controlled substance at Student Company B, Schools Battalion, MCCES, MCAGCC, Twentynine Palms, CA.
Awarded forfeiture of $315.00 pay per month for 2 months, restriction and extra duties for 45 days.  Not appealed.

880211:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

880212:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to appear before an Administrative Discharge Board and to obtain copies of the documents used to support the basis for the separation.  Applicant waived right to written statements in rebuttal to proposed separation.

880219:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was as follows: during recruit training at MRD, San Diego, the Applicant was granted a RLS waiver on 871007 for prior- service drug use.  He did not provide this information on his DD form 1966/3 Aug 85 (Section III 36a); the Applicant joined his command on 871125 and, upon arrival, was informed during student in-processing of all regulations concerning the use of drugs and that drugs would not be tolerated; prior to Christmas leave, the Applicant was informed of a urinalysis that would be given to all Marines upon their return.  The Applicant chose not to follow regulations and wrongfully used THC while on Christmas leave;  On 880108, he tested positive for a scheduled I controlled substance (THC) and was given battalion-level nonjudicial punishment on 880202;  the Applicant was dropped from MOS training for violation of UCMJ Article 112a.  Commanding Officer comments: "His total disregard toward Marine Corps policy on the use of illegal drugs indicates that he does not have the discipline to be a productive Marine.  Therefore, he does not have potential for further satisfactory service.... After reviewing the contents of the basic correspondence, it is my opinion that the respondent has no potential for future honorable service and that separation with a discharge under other then honorable conditions is warranted by the respondent's record of service."

880318:	Applicant, in signed statement, waives his right to an Administrative Discharge Board.

880318:	GCMCA (Commanding General, Marine Corps Air Ground Combat Center, Twentynine Palms, CA) 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 880331 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, through counsel, contends that his immaturity and inability to handle the stressful military life precluded him from making mature decisions and that this fact should be considered in the recharacterization of his discharge.  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 disregard for the requirements of military discipline and demonstrated that his misconduct warranted processing for administrative discharge.  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 on this basis is denied.

Additionally, the Board, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the characterization of service and/or the reason for discharge if an error or inequity exists within the separation process.  The Board found that no such error or inequity occurred during this process and that the Applicant’s discharge characterization accurately reflects his service to his country.  Relief on this basis is also denied.

Lastly, the Board, under its authorization to consider outstanding post-service factors in the recharacterization of a discharge, examined the additional documentation submitted by the Applicant.  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 civilian life subsequent to leaving the service.  However, the Board may consider post-service documentation 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 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 verifiable documents that may be provided to receive consideration for relief based on post-service conduct.  The Applicant did not provide sufficient documentation for the Board to consider an upgrade to his discharge.  Relief on this basis is 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.  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/A9319/A9301/A9221