Author: CAP
Last saved by: shirley.robertson
Company: NCPB

Docket No. MD04-00162

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

ex-PFC, USMC
Docket No. MD04-00162

Applicant’s Request

The application for discharge review was received on 20031104.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record review.  The Applicant did not list a representative on his DD Form 293.  Subsequent to the application, the Applicant obtained representation from the Disabled American Veterans.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040628.  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: 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 stated

The Applicant submitted no issues or documentation. 

Documentation

None submitted.

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR (J)		890531 - 890822	COG

Period of Service Under Review:

Date of Enlistment:  890823		Date of Discharge:  930326

Length of Service (years, months, days):

	Active:    03  07  04
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  53

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (12)			Conduct:  4.2 (12)

Military Decorations:  None

Unit/Campaign/Service Awards:  MeritM, NDSM, SSDR (w/1star), SASM (w/1 star)

Days of Unauthorized Absence:  None

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:

890524:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

910327:	NJP for violation of UCMJ, Article 92:  violated Group Order by wrongfully discharging a M870 shotgun while assigned to guard duty.
Violation of UCMJ, Article 134:  through negligence discharging a M870 shotgun while posted to guard duty.  
Awd red to E-2, forf of $150.00 per month for 2 months, 30 days restriction and extra duties.  Red and restriction susp for 6 months. Not appealed.

920108:	Counseled for deficiencies in performance and conduct.  [Wearing an ear ring.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

921222:	Counseled for deficiencies in performance and conduct.  [Unauthorized absence by not being at appointed place of duty.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

930114:	NJP for violation of UCMJ, Article 112a:  wrongfully use AMP/METHAMP.
Awd red to pfc/E-2, forf of $456.00 per month for 2 months, 45 days restriction and extra duties.  Not appealed.

930104:	NAVDRUGLAB [San Diego, CA] reported Applicant’s urine sample, received 921222, tested positive for [AMP/METHAMP].

930211:	SACO/DACO Methamphetamine abuse, recommend Level II prior to separation or equivalent program through the VA after separation.

930129:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by (the Applicant’s) NJP for illegal use of drugs.

930129:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

930202:	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) was found guilty of using an illegal drug.

930317:	GCMCA [Commanding General, 3d Marine Aircraft Wing] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

930326:	SJA review determined the case sufficient in law and fact.
PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19930326 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).

The Applicant did not introduce any decisional issues or documentation for the Board’s consideration.  His discharge characterization accurately reflects his service to our 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 is evident during the Applicant’s enlistment.  His drug abuse warranted processing for separation under other than honorable conditions.  The Applicant certified his understanding of the Marine Corps policy on illegal drug use in a signed and witnessed statement on 24 May 1989.  The record is devoid of any evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  The Applicant’s service record is marred by award of nonjudicial punishment (NJP) on two separate occasions and two negative page eleven counseling entries.  The Applicant’s summary of service clearly reflects the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, and demonstrated he was unsuitable for further service. An upgrade to honorable would be inappropriate.  Relief denied.

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 P1900.16D), 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.