Author: CAP
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Docket No. MD02-01178

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

 ex-Pvt, USMC
Docket No. MD02-01178

Applicant’s Request

The application for discharge review, received 020812, requested that the characterization of service on the discharge be changed to honorable, or general/under honorable conditions, or entry level separation or uncharacterized and the reason for the discharge be changed to I wish to upgrade my discharge to Honorable or as High as allowed.  The Applicant requested a personal appearance hearing before the board in the Washington National Capital Region.  The Applicant listed the American Legion as the representative on the DD Form 293.

Decision

A personal appearance discharge review hearing was conducted in Washington, D.C. on 030324.  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 at the time of issue.  The Board’s vote was unanimous that the character and narrative reason of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct-Drug abuse (administrative discharge board required but waived), authority:  MARCORSEPMAN Par. 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  In accordance with SECNAVINST 5420.174C, enclosure (1), paragraphs 2.24 and 9.3, this former member requests the Board’s clemency relief with up-grade of his characterization of service on the basis of his post-service conduct.

Documentation

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

Recommendation dated June 18, 2002
Character reference dated May 14, 2002
Recommendation dated May 14, 2002
Character reference dated June 18, 2002
Official transcript dated January 14, 2002
Unofficial transcript
Field of study
Résumé
Applicant's portfolio (returned to Applicant on 25 March, 2003)
Recommendation from R_ M_, undated
Recommendation dated March 18, 2003
Record of child support payments (13 pages)
Bluefield Police record check dated March 17, 2003
Mercer County Sheriff’s Office record check dated March 17, 2003
Princeton Police record check, undated 

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		880322 - 880531	COG

Period of Service Under Review:

Date of Enlistment:  880601			Date of Discharge:  890804

Length of Service (years, months, days):

	Active:    01  02  04
	Inactive:  None

Age at Entry:  17 Parental Consent 		Years Contracted:  4

Education Level:  12				AFQT:  71

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.1 (6)				Conduct:  3.1 (6)

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  2

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct-Drug abuse (administrative discharge board required but waived), authority:  MARCORSEPMAN Par. 6210.5.

Chronological Listing of Significant Service Events:

880321:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

880601:	Initial enlistment contract documents admission of pre-service marijuana experimentation.  Enlistment waiver granted.

890123:	Applicant to unauthorized absence 0701, 890123.

890125:	Applicant from unauthorized absence1900, 890125 (2 days).

890214:	NJP for violation of UCMJ, Article 112a:
Specification: Wrongfully used a controlled substance on 890121.
Violation of UCMJ, Article 121:
Specification: Stole 69-7.62 rounds, 1-50 cal round, 1-20mm practice round, 2-40mm practice rounds and 1 fuse and detonator for a practice grenade, the property of the United States Government.
Violation of UCMJ, Article 86:
Specification: Unauthorized absences from 0701, 890123 to 1900, 890125 (2 days).
Violation of UCMJ, Article 111:
Specification: Operated a motor vehicle while drunk
Awarded forfeiture of $349.00 per month for 2 months, restriction and extra duties for 45 days, reduction to Pvt.  No indication of appeal.

890526:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 86 (7 specifications):
	Specification 1: Failure to go at the time prescribed to APOD, Bn restricted muster on 0900, 890318.
	Specification 2: Failure to go at the time prescribed to APOD, Bn restricted muster on 0700, 890319.
	Specification 3: Failure to go at the time prescribed to APOD, Bn restricted muster on 0700, 890402.
	Specification 4: Failure to go at the time prescribed to APOD, Bn restricted muster on 0700, 890404.
	Specification 5: Failure to go at the time prescribed to APOD, Bn restricted muster on 1800, 890407.
	Specification 6: Failure to go at the time prescribed to APOD, Bn restricted muster on 0700, 980408.
	Specification 7: Failure to go at the time prescribed to APOD, Bn restricted muster on 1800, 890412.
	Finding: to Charge I and the specifications thereunder, guilty.
	Sentence:  Forfeiture of $466.00, confinement for 30 days.
	CA action 890526:  Sentence approved and ordered executed.

890526:	Applicant to confinement.

890619:	Applicant from confinement.

890703:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

890705:	Applicant advised of his rights and having elected not to consult 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.

890707:	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 failure to conform to the standards of the Marine Corps.  Upon enlistment, he was granted a waiver for preservice drug use.  On 14 February 1989, he was the subject of nonjudicial punishment for violation of Articles 86, 111, 112A and 121, Uniform Code of Military Justice, unauthorized absence for 2 days, driving while intoxicated, wrongful use of a controlled substance and theft of government property.  On 26 May 1989, he was convicted by Summary Court-Martial for violation of Article 86, Uniform Code of Military Justice, 7 specifications of failure to go at the time prescribed to the appointed place of duty.  Due to the use of a controlled substance and repeated violations of the Uniform Code of Military Justice, I have determined that he has no potential for further service and, accordingly, retention is not warranted. 

890711:	SJA review determined the case sufficient in law and fact.

890713:	GCMCA [Commanding General, 7^th Marine Expeditionary Brigade, FMF, 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 890804 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’s discharge characterization and narrative reason for separation accurately reflect his service to his country.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity is evident 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.  Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country.  It must be noted that most Sailors and Marines serve honorably and well and therefore earn honorable discharges.  In fairness to those Sailors and Marines, commanders and separation authorities are tasked to ensure that undeserving Sailors and Marines receive no higher characterization than is due.  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.  The regulation does not clearly define this authority, but in fairness to those who have served honorably, the Board is very judicious in its application of this authority.  While the Board commends the Applicant for the accomplishments he has made since his discharge, the Applicant’s evidence of post-service conduct was found not to mitigate the offenses for which he was discharged.  Relief denied.

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/A9221/A9217/