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

Docket No. MD04-01269

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

ex-PFC, USMC
Docket No. MD04-01269

Applicant’s Request

The application for discharge review was received on 20040806.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a personal appearance hearing before the board in the Washington National Capital Region.  The Applicant listed civilian counsel as the representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050107.  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

Issues submitted by Applicant’s counsel/representative (Civilian Counsel):

“I.  Though Otherwise Equitable, PVT R_’s Discharge Should be Upgraded According to the Rules Governing the Board

When evaluating whether to upgrade PVT R_’s discharge, this Board must determine if sufficient evidence exists to warrant granting the requested relief even though the discharge was proper at the time of issuance.  The principles of equity that guide this Board’s deliberations clearly justify upgrading the discharge in question.  As noted above, 32 C.F.R.  § 724.903(c) instructs the Board to consider:

1)  Quality of service, and
2)  Capability to serve satisfactorily, as evidenced by:
a)  Total capabilities of the service member, and
b)  Extenuating family and personal problems.
All of these factors support the upgrade of PVT R_’ s discharge.

PVT R_ was a good Marine.  For three years prior to the incidents in Hawaii, his record was spotless.  Despite a learning disability, he successfully completed several training courses, was promoted twice, received a Certificate of Commendation, and was both respected and admired by his peers.

He was a good Marine, but he did not possess the capability to deal on his own with an emotional crisis and adjust to the military reality of reassignment far away from loved ones.  Just when he needed his support network most, during the difficult anniversary of his best friend’s suicide, he was simultaneously separated from his friends and substantially distanced from his family.  Handling this is a lot to ask of anyone, let alone a young man, like PVT R_ who grew up with a low self-image.  He was not the type of person who could quickly develop an adequate support network to deal with this situation.  Clearly family and personal problems, combined with PVT R_’s reduced capabilities, affected his ability to serve satisfactorily and led to his discharge.

II.   The Board Can and Should Weigh Other Factors That Support Upgrading PVT R_‘s Discharge

This Board is not limited to the explicitly named considerations above, but may also weigh other factors that support granting clemency.  The Marine Corps Separation and Retirement Manual mandates separation for all illegal drug use and indicates that, “Characterization of service normally shall be under other than honorable conditions, but characterization as general (under honorable conditions) may be warranted in some circumstances.” MARCORSEPMAN 6210.

As the Board surely realizes, there are different degrees of guilt.  Both a man who steals $10 and a man who steals $10 million have committed theft, but obviously the man who steals $10 million should be punished more harshly.

PVT R_ is not a habitual drug-user.  He is not even a recreational drug-user.  PVT R_ is a young man who made a poor decision to attempt to manage his pain and sadness by experimenting with ecstasy in a social setting.  To describe this type of individual, the Air Force uses a term, “drug experimenter,” that “is defined as one who has illegally or improperly used a drug for reasons of curiosity, peer pressure or similar reasons.” Drug experimenters are even eligible for retention in the Air Force if they have otherwise clean records of service and the drug-use is not likely to recur in the future.

AFI 36-3208.

Though the Marine Corps, in contrast to the Air Force, mandates separation for all illegal drug use, it underscores the importance of proper discharge characterization,

Characterization is recognition of the quality of a Marine’s performance and conduct.  Determining the proper characterization should not be underestimated.  Characterization serves as a goal for each Marine and as a meaningful endorsement to potential employers.  MARCORSEPMAN 1004.la

As described by the Marine Corps,

General (under honorable conditions) is appropriate if the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance outweigh positive aspects of the member’s military record.  MARCORSEPMAN 1 004.2b(2)

In this case, a general discharge is an accurate reflection of PVT R_’s service and the appropriate level of endorsement for potential employers.

For his crime, PVT R_ bears the shame and disappointment of a premature end to his military career, not to mention the reduction in rank and forfeiture of pay.  Even with a general discharge, PVT R_ will still suffer the stigma of not having an honorable discharge.  He will still have to explain his record and the conditions of his separation to potential employers and earn the benefit of the doubt from them, but at least it will not be an immediate bar to working as a public servant.

PVT R_ has no criminal record and is a hard-working, responsible member of society.  Even current police officers, the very men who would be his peers and who would have to rely on his integrity were he able to join the department, are willing to vouch for him.

The circumstances that ultimately led to PVT R_’s discharge from the Marine Corps are unfortunate, to say the least.  Though his actions constituted a violation of the Uniform Code of Military Justice, and resulted in his separation from the Marine Corps, it is PVT R_’s hope that this Board will recognize that his youthful indiscretion was out of character and occurred as a result of his failure to effectively cope with the depression that surrounded him upon his reassignment to Hawaii.”

Documentation

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

Letter from T_ J_ D_, February 14, 2004
Letter from R_ C_ J_, February 16, 2004 (2 pages)
Letter from G_ S_ H_, February 29, 2004
Cognitive Evaluation, February 1988 (8 pages)
High School Diploma, June 1996
Letter from J_ V_, January 30, 2004 (2 pages)
Alarm Monitoring Station Sentry Course Completion Certificate, October 25, 2000
Promotion warrant to Lance Corporal w/ ltr, February 1, 2000
Certificate of Commendation, July 21, 2000 (2 pages)
Promotion warrant to Corporal w/ ltr, May 1, 2001
Letter from B_ D_ G_, January 31, 2004
Parting Letter from Bangor, June 1, 2001
Letter from P_ J_ R_, January 25, 2004 (4 pages)
CID Sworn Statement, November 2, 2001 (3 pages)
Letter from J_ M_ K_, February 27, 2004
State of Connecticut criminal history record, dated March 24, 2004
Reduction notification dtd July 19, 2001
Reduction notification dtd November 13, 2001
NAVMC 118(12), Offenses and punishments, page 12a frm Applicant’s SRB

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		981006 - 981130	COG

Period of Service Under Review:

Date of Enlistment:  981201		Date of Discharge:  011228

Length of Service (years, months, days):

	Active:    03  00  28 (Doesn’t exclude lost time.)
	Inactive:  None

Age at Entry:  21			Years Contracted:  4

Education Level:  12			AFQT:  34

Highest Rank:  Cpl			MOS:  0311

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (11)			Conduct:  4.2 (11)

Military Decorations:  None

Unit/Campaign/Service Awards:  CoC

Days of Unauthorized Absence:  4

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:

980930:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

010719:	NJP for violation of UCMJ, Article 86:
Specification: Unauthorized absence from 2045, 010712 through 1700, 010716 (4 days).
Awarded forfeiture of $653.00 per month for 2 months, restriction and extra duties for 45 days, reduction to E-3.  Forfeiture, restriction and extra duty suspended for 6 months.  Not appealed.

011102:	Applicant’s voluntary statement indicating ecstasy use on five occasions.

011113:	Vacate suspended forfeiture; restriction and extra duty awarded at CO’s NJP dated 010719.

011113:	NJP for violation of UCMJ, Article 112A:
Specification: Wrongfully use ecstasy between 010706 through 011012.
Awarded forfeiture of $584.00 per month for 2 months, restriction and extra duties for 45 days, reduction to E-2.  Restriction and extra duties suspended 6 months.  Not appealed.

011113:	Medical evaluation for drug abuse found no diagnosis:  Recommend discharge without further treatment required for illicit drug use.  

011204:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

011204:	Applicant advised of rights and having elected not to consult 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.

011204:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was wrongful use of MDA/MDMA (ecstasy), as supported by your statement to Criminal Investigation Division on 011102 and your nonjudicial punishment on 011113.  

011220:	SJA review determined the case sufficient in law and fact.

011226:	GCMCA [Commanding General, Marine Corps Base, Hawaii] 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 20011228 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).

Issue 1.  Despite a service member’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.  Mandatory processing for separation is required for Marines who abuse illegal drugs.  There is credible evidence in the record that the Applicant used illegal drugs.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  While the Applicant may feel that his learning disability and inability to deal with personal problems was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

Issue 2.  A characterization of service of under other than honorable conditions is warranted when the member’s conduct constitutes a significant departure from that expected of a Marine.  The Applicant’s service was marred by award of nonjudicial punishment (NJP) for unauthorized absence on 20010719.  He was subject to nonjudicial punishment a second time for violating Article 112a on five occasions.  As a result of his continued misconduct, the punishment, awarded but suspended at his 20010719 nonjudicial punishment, was vacated on 20011113.  The Applicant’s conduct, 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 a general characterization of service.  It must be noted that most Marines serve honorably and well, and therefore earn honorable discharges.  In fairness to those Marines, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due.  Relief denied.

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.  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.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that his discharge was appropriate and that his evidence of post-service conduct was found not to mitigate the conduct for which he was discharged.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Relief denied.

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 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		Secretary of the Navy Council of Review 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.