Author: CAP
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Docket No. MD02-01214

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

 ex-Pvt, USMC
Docket No. MD02-01214

Applicant’s Request

The application for discharge review, received 020823, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to Convenience of the Government, reenlistment code change to RE-1 and corresponding separation Program #/Designator.  The Applicant requested a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030602.  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 and narrative reason 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

Dear BCNR:  The following issues are the reasons I believe my discharge should be upgraded to Honorable.  If you disagree, please explain in detail why you disagree.  The presumption of regularity that might normally permit you to assume that the service acted correctly in characterizing my service as less than honorable does not apply to my case because of the evidence I am submitting.

1.  My command abused its authority when it decided to give me a bad discharge.  This is substantiated by enclosure (1) where J.P. F-----  states that he felt that I didn't deserve the discharge I received but I was being made an example of.

2.  My average conduct and efficiency ratings/behavior and proficiency marks were good.  This is supported by enclosure (2) were my pro was a 4.5 and my con 4.2 the only time it was low was during the time period that I had enough of the racial discrimination and sexual harassment at the SMU perpetrated by MSGT H_, SGT. D_, and CPL. G_.  Also while attending boot camp and not being racial discriminated against I was meritoriously promoted to PFC.  Only two marines in my platoon were meritoriously promoted and I was one of them.

3.  I faced racial discrimination and this greatly affected my ability to serve.  One example of the racial discrimination I received was this statement made by MSGT H_ "PFC (Applicant) C_ was right the only good fucking Indian is a dead fucking Indian."  There are many other statements and actions said and performed by the fore mentioned Marines but this to me was the most vulgar and distasteful statement I ever heard from an authority figure, and from the moment he said it I would not follow a single order this bigoted man gave which in turn enraged the entire SMU.  I contacted Senator D_ of North Dakota to get a discharge because I was constantly hazed, harassed, and berated by these three Marines.  Senator D_'s office investigated the allegations but because of the threat of reduction in rank by MSGT H_ no one would come forward to support my claims.  One Marine tried CPL M_ but was brought up on false charges and reduced in rank, this was done to show that no one was to come forward and give these charges of racial discrimination any validity.

4.  I have been a good citizen since discharge.  I have since gotten married, have a child, and am a great employee.

Documentation

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

FBI identification record, dated July 31, 2002
One page of rules and regulations
Letter to Applicant, from Federal Bureau of Investigation, dated August 1, 2002
Applicant's fingerprints
Job recommendation, dated May 25, 2002
Marriage license, State of North Dakota, dated September 13, 1999
Police record check from Bismarck Police Department, dated May 14, 2002
Two pages from Applicant's service record
Character reference, dated May 14, 2002
Letter of appreciation, dated February 16, 1999
Letter from United States Senate, dated December 15, 1994
Letter to United States Senator, dated February 6, 1995
Letter to United States Senator, dated December 29, 1994

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		920326 - 951109	COG

Period of Service Under Review:

Date of Enlistment:  921110		Date of Discharge:  950210

Length of Service (years, months, days):

	Active:    02  03  01
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  92

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.5 (8)			Conduct:  3.3 (8)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  16

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:

920324:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

930920:	Mental Health Clinic: Diagnoses: Axis I: Status post attention deficit/hyperactivity disorder of childhood - ? in remission, rule out adult residual symptoms.  Axis II: Personality disorder not otherwise specified with narcissistic and antisocial character features.

931007:	NJP for violation of UCMJ, Article 86 (2 specs):
Specification 1: Unauthorized absence from field day formation from 1700-1715, 930916.
Specification 2: Unauthorized absence from Brks PC530 from 2130, 930916 to 0615, 930917.
Awarded forfeiture of $205.00 per month for 1 month, restriction and extra duties for 14 days.  Forfeiture suspended for 6 months.  Not appealed.

940715:	Applicant to unauthorized absence 1000, 940715.

940801:	Applicant from unauthorized absence 2022, 940730 (16 days/apprehended).

940805:	MHU: Diagnostic Impressions: Axis I: Attention deficit hyperactivity disorder of childhood, currently in remission.  Axis II: Personality disorder, not otherwise specified, with narcissistic and antisocial features.  Recommendations: Applicant is not suitable for further military service.
	
940805:	Applicant to confinement.

940823:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 86.
	Specification: Unauthorized absence from 1000, 940715 to 2022, 940730 (16 days/apprehended)
	Charge II: violation of the UCMJ, Article 87:
	Specification: Miss movement on 1000, 940715, through neglect.
	Charge III: violation of the UCMJ, Article 112a:
	Specification: Wrongfully used a controlled substance, to wit: THC.
	Finding: to Charge I, II and III and the specifications thereunder, guilty.
	Sentence: Forfeiture of $555.00, confinement for 30 days, reduced to Pvt.
	CA action 940829:  Sentence approved and ordered executed.

940829:	Applicant from confinement.

941129:	Applicant to confinement.

941222:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 86.
	Specification: Failure to go at the time prescribed to appointed place of duty 0730, 941102.
	Charge II: violation of the UCMJ, Article 89:
	Specification: Disrespectful to Colonel by laughing (smirk) during NJP.
	Charge III: violation of the UCMJ, Article 91:
	Specification: Disrespectful to Sgt by calling him a "mother fucker."
	Charge IV: violation of the UCMJ, Article 92:
	Specification: Violated MCO 1020.8u, para 1a(3), by wearing an earring in his ear.
	Charge V: violation of the UCMJ, Article 117:
	Specification: Wrongfully used provoking words ("Mother Fucker") toward Sgt.
	Finding: to Charge I, II, III, IV and the specifications thereunder, guilty.  Charge V and the specification thereunder, not guilty.
	Sentence: Forfeiture of $555.00, restriction for 21 days.
	CA action 950104:  Sentence approved and ordered executed.

950104:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to a pattern of misconduct.

950104:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights.

950104:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to a pattern of misconduct.  The factual basis for this recommendation was use of illegal drugs, and Applicant has been identified as a drug abuser. 

950206:	SJA review determined that the proceedings are sufficient in law and fact for processing due to drug abuse.  However, the basis for separation by reason of misconduct due to a pattern of misconduct is unsubstantiated.  The evidence lacks the 6105 counseling entry required by paragraph 6210.3 of MCO P1900.16D.

950208:	GCMCA [Commanding Officer, 2d Force Service Support Group] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

950208:	Psychiatric Evaluation: Impression: 1. Personality disorder NOS, 2. Alcohol dependence.  Have recommended Level III inpatient treatment to Applicant and command but as Applicant is now discharged the command may not have jurisdiction over his being admitted.  Plan: 1. Return to Supply Company.  2.  Recommend Level III CDAC admission to evaluate alcohol dependence.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 950210 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).

Issues 1-3.  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.  The Board found no indication that the Applicant’s command abused its authority concerning the Applicant’s discharge.  While he may feel that racism was a factor 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.

Issue 4.  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’s evidence of post-service conduct was found not to mitigate the offense for which he was discharged.  Relief not warranted.

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 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/A9217/A9201/A9439/A9221