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Docket No. MD02-01086

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

 ex-LCpl, USMC
Docket No. MD02-01086

Applicant’s Request

The application for discharge review, received 020729, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant listed member of Congress as his representative on the DD Form 293.  In the acknowledgement letter to the Applicant, he was informed that members of congress do not represent applicants before the Board and that written authorization must be obtained from the Congressman.  Such authorization was not received; therefore case reviewed without representation.

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.  I'm trying to start my life over, by not having an honorable discharge, this tends to slow my career.  I am a lot more responsible now, than I was in the Marines.  I am trying to go to college, and getting my benefits for college would help. I've been trying to upgrade since I've been out of the Marines, Please consider my request.

2.  I am seeking help to reinstate my discharge from the Marine Corps. "from Other than Honorable" to Honorable". I would like to take a moment of your time to tell you about my situation.

I am a 26 year old veterans of the United States Marine Corps., and currently a resident of St. Petersburg Fl.  I enlisted in the Marines in 1993 on the delayed entry program.  Then serves as a Marine from June 1994 to January 1998.  I was released in 1998 with an " Other than Honorable" discharge, do to misconduct.  From that point all the benefits I paid into and or earned were taken away.

Since my discharge in 1998, Iv'e been working dead end jobs and also trying to upgrade my discharge to honorable, to receive my G.I. bill and go to college full time.

I am working as a truck driver, which is not the career I had hoped for!  I am planing to go to college, however the reinstatement of my military benefits are needed.  I am interested in studying computer and physical fitness.  I have great aspiration and intend to set my goals high.

I love my Country and was honored to serve.  I was the best rifleman and artillery cannoned in my battalion.  What I was guilty of as a Marine was, being irresponsible on the weekend.  The Marine Corps. Motto was "Work hard play hard!".  I'm very proud of serving my country and would do it all over if I could.  I am much more responsible and mature now than I was in the Marine.

Please consider my request for an upgrade with full benefits.  I would like to redirect my future in a more positive direction.

Documentation

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

Letter from Applicant, dated May 17, 0002
Response Letter from BCNR, dated May 7, 2002
Employment Reference Letter, dated April 3, 2002
McKenzie Tank Lines, INC Position Description, dated January 29, 2001
Copies of DD Form 214 (2)

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		930623 - 940620	COG

Period of Service Under Review:

Date of Enlistment:  940621		Date of Discharge:  980108

Length of Service (years, months, days):

	Active:    03  05  22
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  42

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (9)			Conduct:  3.8 (9)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, Meritorious Mast, SSDR, LOA, Rifle Expert (3^rd)

Days of Unauthorized Absence:  15(971014-971028)

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:

930617:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

950707:	NJP for violation of UCMJ Article 81: In that PFC L_ did at Base Exchange, Camp Foster, Okinawa, Japan, at or about 1800 on 950701, conspire with LCpl M_ to commit an offense under the UCMJ to wit: larceny and wrongful appropriation, of a value $59.00 the property of the Base Exchange and in order to effect the object of the conspiracy the said [Applicant] and LCpl M_ did wrongfully appropriate a Nintendo cartridge by switching the price to a lower price and paying for the said item at a false lower price.
Awarded forfeiture of $427.00 pay per month for 2 months, restriction and extra duties for 45 days, reduction to E-1.  Not appealed.

950611:	Applicant in the hands of foreign authorities from this date until 950621for the larceny of a privately owned vehicle belonging to a local national and damages to subject vehicle.  Applicant released on 950622 without trial from the Japanese government as he will be prosecuted by U.S. Military authorities.

950710:	Counseled for deficiencies in performance and conduct (Frequent involvement in acts of theft and larceny; Applicant's lack of integrity and untrustworthy behavior is not consistent with the high standards expected of Marines and will not be tolerated).  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950920:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 81,
	Specification: In that [Applicant], U.S. Marine Corps, did, at Okinawa, Japan, on or about 950611, conspire with LCpl M_ C. P_, U.S. Marine Corps, and PFC O_ A. M_, U.S. Marine Corps, to commit an offense under the UCMJ, to wit: wrongful appropriation of a red, two-door hatchback Daihatsu, of a value of about $1000.00, the property of Marutaka Transportation Company, and in order to effect he object of conspiracy the said [Applicant], LCPL P_, and PFC M_, did enter the said Daihatsu, look around to observe if anyone was watching them and drive the said Daihatsu from where it was parked.  Charge II: violation of the UCMJ, Article 109: In that [Applicant], U.S. Marine Corps, did, at Okinawa, Japan, on or about 950611, willfully and wrongfully damage a citizen's band (CB) radio by pulling the microphone cord off the radio and pushing the radio with full force to the floor, the amount of said damage being in the sum of some value, the property of Marutaka Transportation Company.  Charge III: violation of the UCMJ, Article 121: In that [Applicant], U.S. Marine Corps, did, at Okinawa, Japan, on or about 950611 wrongfully appropriate a red, two-door hatchback Daihatsu, of a value of about $1000.00, the property of Marutaka Transportation Company.
	Finding:  to Charge I and the specification thereunder, guilty.  To Charge II and the specification thereunder, not guilty.  To Charge III and the specification thereunder, guilty.
	Sentence:  Confinement for 21 days.
	CA action 951013:  Sentence approved and ordered executed.

970530:	Counseled for deficiencies in performance and conduct (Using poor judgement by allowing a fellow Marine to drive a vehicle while under the influence of alcohol).  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970912:	Statement from Sgt R_ T_ stating that Cpl E_ and Cpl F_ approached him and told him that LCpl P_, [Applicant], and LCpl  D_ were using drugs.

971001:	Applicant, in written statement, affirms that he has read and understands his rights as given under the UCMJ, admits to having a drug problem, states that he voluntarily told his section SNCOIC, and requests Level III treatment.

971007:	Counseled for deficiencies in performance and conduct (Concerning Applicant's involvement of a discreditable nature with military and civilian authorities by disobeying a lawful order specifically using illicit drugs while on active duty in the United States Marine Corps).  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

971009:	Statement from Cpl J_ J. E_ acknowledging [Applicant]'s use of a controlled substance.

971009:	Statement from Cpl J_ M. F_ acknowledging [Applicant]'s use of a controlled substance.

971014:	Applicant to unauthorized absence status from 0600 this date until 1600 on 971029 (15 days/surrendered).

971016:	Substance Abuse/Chemical Dependency Evaluation indicates Applicant was diagnosed as drug dependent.  In accordance with MCO P5300.12, the Applicant was ordered into Level III Treatment and was placed in a non-deployable status until completion of treatment.  Applicant was recom-mended for administrative discharge after treatment.  A bed space was reserved for him at the Substance Abuse Rehabilitation Department, Naval Medical Center, San Diego, CA.

971105:	Counseled for deficiencies in performance and conduct (Concerning Applicant's involvement of a discreditable nature with military or civilian authorities by failing to be at my appointed place of duty with the intent to avoid field exercises specifically, failing to report to battery formation at 0600 on 971014 located on the battalion grinder in preparation for movement in support of CAX).  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

971118:	NJP for violation of UCMJ Article 86: UA (AWOL) from 0600 on 971004 to 1600 on 971029 (15days/S); violation of UCMJ Article 112a: At MCAGCC, 29 Palms, CA at an unknown time and date, did wrongfully use a controlled substance.
Awarded forfeiture of $575.00 pay per month for 1 month, restriction and extra duties for 45 days, reduction to E-3.  Not appealed.

971205:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

971206:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights.

971208:	Applicant to Naval Medical Center, San Diego, CA for a period of about 25 days in order to undergo substance abuse rehabilitation; released from treatment on 980102.

971208:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was the Applicant's confirmed use of Metham-phetamines as indicated in written statements [included as references to the notification] from the Applicant and from his fellow Marines.

971216:	SJA review determined the case sufficient in law and fact.

971218:	GCMCA (Commanding General, 1st Marine Division (Rein)) 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 980108 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 that his post service conduct, to include his increased maturity, his desire to continue his education (college), and his employment record, warrants consideration in the upgrade of his discharge.  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.  The NDRB is author-ized, however, 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 understand-ing 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.  At this time, the Applicant has not provided sufficient documentation for the Board to consider an upgrade to his discharge.  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.

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.  The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  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

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/A9453/A9301/A9221