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

 ex-PFC, USMC
Docket No. MD03-00777

Applicant’s Request

The application for discharge review was received on 20030326.  The Applicant requested the characterization of service received at the time of discharge be changed to honorable, and the Applicant requested a personal appearance hearing before the Board in the Washington National Capital Region.  The Applicant listed a civilian counsel as the representative on the DD Form 293.

Decision

A personal appearance discharge review hearing was conducted in Washington, D.C. on 20040318.  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 of the discharge shall not change.  The discharge shall remain:  UNDER OTHER THAN HONORABLE CONDITIONS /Misconduct-Drug abuse (admin discharge board required but waived), authority:  MARCORSEPMAN Par. 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Issues submitted by Applicant’s counsel/representative (CIVILIAN COUNSEL):

 “1.  Equity – ineffective representation of counsel.

2.  Equity – self serving testimony of two admitted drug users (P_ & T_).

3.  Equity – already punished for urinalysis test of 11-16-87 by Article 15.

4.  Propriety – unduly influenced to accept an administrative discharge (4-29-88) verses request for Board.

Applicant’s issues, as stated on the application:

The Applicant respectfully requests that the Board upgrade his existing discharge to ‘Honorable.’
The Applicant respectfully notes that his service and post service records are outstanding and reflect honorable conduct at all times.  (See attached documentation.)
It is further noted that the existing discharge was based on a one time urinalysis.  Such tests have often been determined to be inaccurate (‘C_ Case’).
The Applicant was on active duty for four years.  His record contains no other allegations of misconduct.  He was in foreign service for approximately two years.  He was awarded the Good Conduct Medal.
It is suggested that under the current guidelines in place with the Marine Corps that Mr. L_ (Applicant) would not have been discharged as he was and that he would have served out his enlistment and been honorably discharged.”

Documentation

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

Employee of the Year, Samoset Resort, dated January 16, 1995 (3 pages)
Letter of Recommendation, Golf Professional, The Country Club, Farmington, CT, dated December 10, 1993
Letter of Recommendation, Vice President, The Country Club, Farmington, CT, dated December 10, 1993
Letter of Recommendation, Club Manager, The Country Club, Farmington, CT, dated December 10, 1993
Applicant's DD Form 214, dated June 10, 1988
Certificate of Completion, Personal Finance, Marine Corps Institute, dated February 24, 1988
Letter of Recommendation, Air Terminal Manager, Iwakuni U.S.M.C. Air Station, dated June 16, 1987
Certificate of Good Conduct, Commanding Officer, El Toro U.S.M.C. Air Station, dated December 10, 1987
Request for Overseas Extension, R_ A _ L_ (Applicant), dated January 3, 1986
Letter of Recommendation, Logistics Officer, Iwakuni U.S.M.C. Air Station, undated
Appointment to Lance Corporal, Commanding Officer, HQHQRON MCAS FPO Seattle, WA 98764, dated February 1, 1986
Letter of Appreciation, Commanding Officer, 316th Aerial Port Squadron U.S.M.C., dated September 16, 1986
Certificate of Recognition, Commanding Officer, 316th Aerial Port Squadron U.S.M.C., for period August 30-31, 1986
Letter of Appreciation, Commanding Officer, Iwakuni U.S.M.C. Air Station, dated December 11, 1985
Diploma, U.S. Army Transportation School, Traffic Management Course, dated June 6, 1985
Appointment to Private First Class, Commanding Officer, Marine Barracks, Naval Weapons Station, Yorktown, VA 23691, dated June 1, 1985
Rifle Marksmanship Award, dated March 6, 1985
Letter of recommendation from J_ P_
Letter of recommendation from N_ D_
Letter of recommendation from T_ S_
Copy of website for the The First Tee (3 pp.)
Letter of recommendation from R_ W_, Jr.
Letter of recommendation from Applicant’s wife
Letter of recommendation from R_ W_
Letter of recommendation from J_  H_
Letter of recommendation from Applicant’s father
Criminal record check dated March 1, 2004
Letter of recommendation from K_ O_
Copy of photos
Golf Course Superintendents Association certificate
Analysis transcript of Class A renewal credits
Membership card for Maine Audubon
Membership card for USGA Champion Club
Winter School for Turf Managers certificate
Certificate of continuing education units
University of Connecticut transcript
High school transcript
University of Maryland grade report
Statement from Applicant on volunteer service

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		840110 - 841210	COG

Period of Service Under Review:

Date of Enlistment:  841211		Date of Discharge:  880610

Length of Service (years, months, days):

	Active:    03  06  00
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  49

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.6 (9)			Conduct:  4.0 (9)

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR with 1 Star, GCM, Letter of Appreciation (2), Rifle Marksman Badge, MUC

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:

860402:	Applicant attended alcohol abuse Level I education.

860409:	NJP for violation of UCMJ, Article 111:
Specification: Operate a POV while drunk with a BAC of .17% at 0200, 860430.
Awarded forfeiture of $200.00 per month for 2 months, reduction to PFC.    Reduction suspended for 3 months. Not appealed.

860422:	Counseled for deficiencies in performance and conduct.  [Failure to conform to required weight standards IAW MCO 6100.10.  Today’s height 68 inches, weight 177.5 pounds, Body Fat %: 24.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

861218:	Applicant completed alcohol abuse Level II treatment.

871116:	Applicant’s random urinalysis was positive with cocaine.

871222:	Counseled for deficiencies in performance and conduct.  [Leaving gym without authorization.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

880127:	Naval Investigative Service Report (partial report).

880203:	Naval Investigative Service Report (partial report).

880310:	NJP for violation of UCMJ, Article 112A:
Specification: Wrongfully used the illegal drug cocaine as evidenced by a compulsory urinalysis procured during a random sample test on 871116.
Awarded forfeiture of $300.00 per month for 2 months, restriction for 20 days, extra duty for 25 days, reduction to E-2.  Restriction suspended for 6 months.  Not appealed.

880331:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and commission of a serious offense.

880331:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse and due to the commission of a serious offense.  The factual basis for this recommendation was your nonjudicial punishment of 880311 and the sworn statements of PFC’s P_ and T_ of 880127 and 880203 respectfully.

880401:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

880429:	Applicant waived his right to an Administrative Discharge Board.

880505:	SJA review determined the case sufficient in law and fact.

880512:	GCMCA [Commander, Marine Corps Air Bases, Western Area, El Toro, 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 19880610 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 and 4.  The documentation and testimony provided by the Applicant do not refute the presumption of regularity in this case.  The Board discerned no inequity or impropriety concerning the rights afforded the Applicant during his processing for administrative separation and his subsequent waiver of those rights.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

Issues 2 and 3.  There is credible evidence in the record that the Applicant used illegal drugs.  Despite the positive aspects of the Applicant’s case, drug abuse warranted processing for separation even with nonjudicial punishment for the same offense.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  These conditions are consistent both for present standards and during the time of the Applicant’s service.  Relief denied.

The Applicant’s discharge characterization accurately reflects 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.  Relief not warranted.

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