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Docket No. MD03-00937

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

 ex-PFC, USMC
Docket No. MD03-00937

Applicant’s Request

The application for discharge review was received on 20030502.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests 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 20040401.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1.  My discharge was based on one incident in four years of service.  I have learned from this and have put this one issue behind me.  I am working and wish to attend college.  I appreciate the board’s consideration.”

Documentation

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

DD Form 149
Character Reference Letter from GySgt B_ K. R_
Character Reference Letter from SSgt S_ M. T_
Substance Abuse Assessment Memorandum
Copies of Certificate of Commendation (2)
Character Reference Letter from HM1 M_ C_
Character Reference Letter from GySgt T_ B. A_

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		970517 - 971026	COG

Period of Service Under Review:

Date of Enlistment:  971027		Date of Discharge:  010702

Length of Service (years, months, days):

	Active:    03  06  05
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  55

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0 (9)			Conduct:  3.9 (9)

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, COC, KCM(w/*), NUC, Rifle Expert, Pistol Sharpshooter

Days of Unauthorized Absence:  None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.3.

Chronological Listing of Significant Service Events:

980428:	Counseled for deficiencies in performance and conduct.  [Violation of ScolO 1700.4d, specifically, underage consumption of alcohol.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980702:	NJP for violation of UCMJ, Article 92 (2 Specifications):
Apprehended by Military Police and found to have a BAC of .09% while under the legal age to consume alcohol, also operating a motor vehicle with this BAC which is a violation of a general order.
Awarded forfeiture of ½ pay per month for 2 months, restriction and extra duties for 30 days, reduction to E-2 (suspended for 6 months).  Not appealed.

980812:	Counseled for deficiencies in performance and conduct.  [Alcohol related incident, specifically DWI with BAC of .09%.  Additionally underage drinking and demonstrated inability to follow rules and regulations.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000609:	NAVDRUGLAB [Jacksonville, FL], reported Applicant’s urine sample, received 000602, tested positive for [THC].

000724:	Substance Abuse Report: The diagnosis was drug abuse (isolated incident).

010330:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 112a: Wrongful use of marijuana.
	Findings:  to Charge I and specification 1 thereunder, guilty.  
	Sentence:  Fine of $500.00 pay per month for 2 months, reduction to E-2, and 75 days confinement.
	CA:  Sentence approved and ordered executed.

010604:	Applicant notified of intended recommendation for discharge under honorable conditions (general) by reason of misconduct due to a pattern of misconduct.

010605:	Applicant advised of his rights and having consulted 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 administrative separation.

010606:	Commanding Officer recommended discharge under honorable conditions (general) by reason of misconduct due to a pattern of misconduct.  The factual basis for this recommendation was the counseling entries dated 980428 and 980812, the non-judicial punishment for violation of Article 92 dated 980802 and the Special Court-Martial dated 010330. 

010608:	DSJA review determined the case sufficient in law and fact.

010620:	GCMCA [Commander, 2d Force Service Support Group] directed the Applicant's discharge under honorable conditions (general) by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010702 under honorable conditions (general) for misconduct due to a pattern of misconduct (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

Issue 1.  A characterization of service of under honorable conditions (general) is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by award of nonjudicial punishment (NJP) on one occasion, one special court-martial for illegal drug use, and adverse counseling entries on other occasions.  In addition, the Applicant’s conduct evaluation average, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service.  An upgrade to honorable is inappropriate.  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.

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 P1900.16E), effective 31 Jan 97 until Present. 

B.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 92, disobey a lawful order; and Article 112a, illegal use of drugs.

C.  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.  

D.  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.

E.  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.
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