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

Docket No. MD04-01027

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

ex-PVT, USMC
Docket No. MD04-001027

Applicant’s Request

The application for discharge review was received on 20040607.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requested a personal appearance hearing discharge review before the Board in the Washington National Capital Region.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter, the Applicant was advised that the Board first conducts a documentary record review prior to any personal appearance hearing. 

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041029.  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, authority: MARCORSEPMAN 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1.  My average conduct and efficiency ratings/behavior and proficiency marks were good.

2.  I received awards and decorations during my service.

3.  My record of promotions showed I was generally a good service member.

4.  My record of court-martial convictions is very short.

5.  The punishment was too severe with today’s standards.

6.  The punishment I got at discharge was too harsh – it was much worse than most people got for the same offense.

7.  I tried to serve and wanted to, but just couldn’t or wasn’t able to.

8.  My command abused its authority when it decided to give me a bad discharge.

9.  My enlistment option was not satisfied or waived.

10.  Clemency is warranted because it is injustice for me to continue to suffer the adverse consequences of a bad discharge.

11.  I am unable to receive medical benefits for my left ankle which I broke and had surgery on while I was in military because of my discharge.”

Documentation

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

Applicant’s DD Form 214
Character Statement from A_ O_
4 pages from Applicant’s medical record
Ltr from Applicant, undated
Ltr from Applicant, undated

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		990903 - 991207	COG

Period of Service Under Review:

Date of Enlistment:  991208		Date of Discharge:  020618

Length of Service (years, months, days):

	Active:    02  06  11
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  31

Highest Rank:  PFC			MOS:  0311

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.6 (8)			Conduct:  3.0 (9)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MARCORSEPMAN 6210.5.

Chronological Listing of Significant Service Events:

990902:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

000516:	NJP for violation of UCMJ, Article 86, unauthorized absence from 19 March 2000 to 11 May 2000 (53 days).  Awarded forfeiture of $502.00 per month for 2 months, restriction and extra duties for 45 days, red to E-1.  Forf susp 6 mos.  Not appealed.

000717:	Counseled for deficiencies in performance and conduct.  [Failure to follow military regulation and orders from superiors.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000727: 	NJP for violation of UCMJ, Article 92, failure to obey lawful order on 000709.  Article 134, Drunk and disorderly conduct on 000703. Awarded forfeiture of $465.00 per month for 2 months, restriction and extra duties for 60 days.  Not appealed.

010301:	NJP for violation of UCMJ, Article 91, disrespectful language toward Cpl M_ and Cpl B_ by saying to them “F_ you,”  “I’ll kick all of your a_.”  Article 92, disobey a lawful order on 24 Feb 01.  Awarded forfeiture of $283.00 per month for 1 months, restriction and extra duties for 14 days.  Not appealed.

010305:	Counseled for deficiencies in performance and conduct.  [Pattern of misconduct for failure to follow regulations, act responsibly on liberty, displaying disrespect for authority.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020116:	NAVDRUGLAB [SAN DIEGO], reported Applicant’s urine sample, received 020109, tested positive for [THC].

020215:	Applicant briefed on VA Addiction treatment availability.
	Applicant refused treatment at Camp Pendleton Naval Addictions Rehabilitation and Education Department.

020405:	Summary Court-Martial.  
	Charge I:  Violation of Article 86.
	Charge II:  Violation of Article 112a.  On or about 7 Jan 02 wrongfully used marijuana.  
	Pleas to Charges I and II:  Guilty.  Findings to Charges I and II:  Guilty.
	Sentence:  Red to E-1, forf $736.00 for 1 mo., confinement for 30 days.
	CA:  Approved and ordered executed.

020416:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by your positive urinalysis of 7 Jan 2002.

020429:	Applicant advised of 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 basis for the separation.

020506:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation is a positive urinalysis conducted on 7 January 2002 for THC. 

020613:	SJA review determined the case sufficient in law and fact.

020809:	GCMCA [CG, 1^st MARDIV] 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 20020618 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 1-4.  The Applicant claims that his proficiency and conduct marks were good.  The Applicant’s marks were 3.6 and 3.0 respectively, which are below average and are not high enough to merit an honorable discharge.  Further, despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  The Applicant’s service record is marred by illegal drug use, thus substantiating the misconduct for which he was separated.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable.  Relief denied.

Issues 5-6.  There is credible evidence in the record that the Applicant used illegal drugs.  Mandatory processing for separation is required for Marines who abuse illegal drugs.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  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.

Issue 7.  The Applicant contends he “tried to serve but just couldn’t or wasn’t able to.”  The NDRB recognizes that serving in the Marine Corps is challenging.  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 members of the Marine Corps serve honorably and therefore earn their honorable discharges.  In fairness to those members of the Marine Corps, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due.  The NDRB found that the Applicant's service was equitably characterized.  Relief denied.

Issues 8- 9.  When the service of a member of the Marine Corps has been honest and faithful, it is appropriate to characterize that service as honorable.  An Under Other Than Honorable Conditions discharge 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 three nonjudicial punishment proceedings for five violations of Articles 86, 91, 92 and 134 of the UCMJ.  The Applicant was also found guilty at court-martial for violations of Articles 86 and 112a.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and/or the reason for discharge if such change is warranted.  There is no evidence of impropriety or inequity in the Applicant’s discharge.  The Applicant’s misconduct is clearly documented.  Therefore, relief is denied. 

Issues 10-11.  The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of 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 P1900.16F), effective 01 September  2001 until Present. 

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.