Author: CAP
Last saved by: joyce.meeks
Company: NCPB

Docket No. MD05-00697

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

 ex-LCpl, USMC
Docket No. MD05-00697

Applicant’s Request

The Application for discharge review was received on 20050308.  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 20050713.  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.  “Members of the Board, 

The proudest day of my life was on March 22, 1996, the day I walked across the parade deck in Parris Island and become a Marine.  As a Marine, I carried myself accordingly and wore the uniform with pride, but in April of 1999, I made a bad decision that I have been regretting everyday since.  While at a party at the University of Hawaii, I smoked a marijuana cigarette.  I have never denied what I did that night and have accepted responsibility for my actions ever since.
When my command (MALSEK) received the results of the urinalysis, I tested positive along with several other Marines.  There were two Marines that I would like to talk to you about in particular.  These Marines were Cpl A_ P_ and Cpl J_ P_.  Our cases were almost identical in reference to our past performance in the Marine Corps and punishment we received as result of testing positive on a urinalysis.  Almost identical, up until the way we were processed for Administrative Separation.
I do not know how far up the Chain of Command my Administrative Separation package went.  I was informed by my Commanding Officer, LtCol. K_, that my package had been stopped and I was allowed to serve out the rest of my enlistment, which terminated on January 27, 2000.  I never questioned this and continued with my day-to-day duties as a Marine.  Cpl P_ was reduced to E-3 and continued to serve with our squadron and was given a suspended Other Than Honorable Discharge and was allowed to serve out his enlistment and received an Honorable Discharge.  Cpl P_ was reduced to E-2 and given a General Discharge.  During Cpl P_’s Administrative Separation Board, my name was mentioned and my case questioned.  To my knowledge, Base Legal did some checking and re-informed my Commanding Officer, LtCol, K_, about the Marine Corps Policy on a Mandatory Separation Board for drug offenses.  Because I only had a two more weeks to serve on my enlistment, my package was rushed through the Chain of Command.  LtCol K_ interviewed me, and at this interview he informed me of his recommendation for separation from the Marine Corps.  I was never given the chance to be interviewed by the ASEK Commanding Officer, Col. G_, as were the other Marines.  I later learned at my Separation Board that Col. G_ recommended me for separation from the Marine Corps.  I believe that both of these recommendations were the only information the board considered.  My past performance and records were equal, and in some cases better than the records of Cpl P_ and Cpl P_, and I received non-recommendations from both the MALSEK and ASEK Commanding Officers, but this was not the case with the other Marines.
My case was dragged out for nine months and these last nine months in the Marine Corps, were the worst nine months in my life.  I let down my family, my leaders and fellow Marines.  I was removed from my position, stripped of my NCO rank, confined at the Ford Island military brig for 25 days, and paraded around my squadron performing menial labor tasks.  All of which, I expected and deserved.
Since I have been discharged from the Marine Corps, I have earned my Microsoft Certification in Networking and I had work two jobs to pay for it since I lost all my benefits from the military.  I have been denied employment at several companies because of my discharge and I am constantly reminded of my actions every time I turn on the news and see Marines on TV or meet a former Marine on the street.
During my four years in the Marine Corps, my performance was outstanding right up until this incident.  My proficiency and conduct marks both averaged 4.6.  I received two Letters of Appreciation, two Meritorious Masts and a Good Conduct Medal.  I completed the Corporals Leadership Course at MCBH.  Twice, I was candidate for the NCO of the Quarter and once for a Meritorious Sergeant.  I had been attending college courses and my plans were to re-enlist in the Marine Corps and possibly become an Officer of Marines.  I knew that was no longer possible because of my ignorant action.  I did grievous harm to not only myself, but also to my family and our Corps.  The one thing that hurts me the most is that I am no longer a Marine.  I am truly sorry for the disgraceful act that I have done, but I cannot change the past.  I believe in my heart and that I served my country honorably and I respectfully ask that you review my discharge and also my re-enlistment code.  Thank you for your consideration.

Sincerely, 
[signed]  J_ A K_ (Applicant)”

Documentation

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

DD Form 214  (Copy 4)
Combat History -- Expeditions -- Awards Record (1070) (NAVMC 118(9))
MCTFS Record of Service, dated January 18, 2000
Letter of Appreciation from Commanding Officer, Marine Aviation Logistics
    Squadron 36, dated June 4, 1997
Meritorious Mast from Commanding Officer, Marine Aviation Logistics
    Squadron 26, dated May 7, 1998
Letter of Appreciation from Director, MWR, Marine Corps Base Hawaii, dated
    November 05, 1998, with forwarding endorsement
Corporals Course Diploma, Marine Corps Base Hawaii, dated July 22, 1998
Certificate of Good Conduct, dated from January 4, 1999
Applicant's Pre-Sentencing Testimony, dated August 3, 1999
Letter from 1stLt J. J, S_, Counsel for Applicant, dated January 13, 2000, requesting
    audience with Commanding General, MCB Hawaii
Letter from 1stLt J. J, S_, Counsel for Applicant, dated January 13, 2000  (2 pages), 
    requesting Applicant's discharge with a general characterization
Letter of recommendation from 1stLt K_ J. B_, dated April 23, 2000

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		951201 - 960103	COG

Period of Service Under Review:

Date of Enlistment:  960104		Date of Discharge:  000121

Length of Service (years, months, days):

	Active:    04  00  18 (Does not exclude lost time)
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  64

Highest Rank:  Cpl			MOS:  6672

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.6 (10)			Conduct:  4.4 (10)

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM, SSDR, MM(2), LOA(3)

Days of Unauthorized Absence:  24 days of confinement

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:

951130:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

990504:	Director, Substance Abuse Counseling Center, Marine Corps Base Hawaii recommended to Commanding Officer, Marine Aviation Logistics Support Element, Kaneohe Bay, Marine Corps Base Hawaii that, due to the result of the screening, the Applicant be processed for administrative separation for illicit drug use.

990804:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 112a:
	Specification: Wrongful use of marijuana
	Finding: to Charge I and specification thereunder, guilty.
	Sentence: Confinement for 30 days, reduction to pay grade E-3.
	CA action 990804:  Sentence approved and ordered executed.

990804:	Applicant to confinement.

990828:	Applicant from confinement (24 days; EAS adjusted to 000127).

991021:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service possible being under other than honorable conditions by reason of misconduct due to drug abuse.
	[Notification of Separation Proceedings is shown to be dated 981213 but the date of 991021 is taken from Applicant's signed acknowledgement of receipt on enclosure (1) of the notification].

991021:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

991213:	Commanding Officer, Marine Aviation Logistics Support Element Kaneohe, 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 marijuana, as supported by summary court-martial on 990804.  Commanding Officer’s comments (verbatim):  The respondent’s actions clearly indicate unsuitability for future military service; therefore, I recommend that the Respondent be expeditiously discharged.

991215:	Commanding Officer, 1st Marine Aircraft Wing, Aviation Support Element, forwarded discharge package to Commanding General, Marine Corps Base Hawaii recommending approval.

000112:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

000113:	Counsel for the Applicant submitted a request to the Commanding General, Marine Corps Base Hawaii for a General Discharge (Under Honorable Conditions) in the Applicant's case.

000113:	SJA review determined the case sufficient in law and fact.

000118:	GCMCA, Commanding General, Marine Corps Base Hawaii, advised the Commandant of the Marine Corps (MMSB-20) that the Applicant will be discharged 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 20000121 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:  The Applicant contends that his misconduct, specifically his drug abuse (use), was the result of his immaturity, which led to bad decision-making at the time.  While the Applicant may feel that this mitigates his misconduct, the record clearly shows that the Applicant was responsible for his actions and willfully and negligently abused (used) illegal drugs.  The Applicant's misconduct is clearly documented by his pleading guilty at a summary court-martial to violation of UCMJ Article 112a Wrongful use of controlled substance.  The evidence of record does not show that the Applicant should not be held accountable for his actions.  Relief on this basis is denied.

The Applicant contends that his discharge was improper for the following reasons: he was not treated in the same manner as two Marine NCOs facing similar situations; he was never interviewed by his higher-level commander prior to his discharge; and he only had two weeks left on his enlistment contract when he was discharged.  For the Applicant’s information, the decision to administratively separate a service member is made independently of separation proceedings of other service members.  Additionally, there is no entitlement for service members being separated to be interviewed by their chain-of-command as part of their separation processing.  With respect to the time remaining on his enlistment contract, the Applicant is advised that a member's time-in-service does not mitigate his misconduct and that the Marine Corps can separate a member at any time prior to end of obligated service.  The Applicant, on 991021, acknowledged his understanding of the rights afforded to him as part of the administrative discharge process, subsequently electing to appear before an administrative discharge board.  The Board determined that the Applicant was correctly processed according to pertinent regulations and could discern no impropriety in the Applicant’s discharge.  Relief on this basis is denied.

The Applicant contends that his discharge was inequitable as his service record reflects good proficiency and conduct marks, receipt of numerous awards, and contains no other disciplinary infractions.  The NDRB advises the Applicant that, despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Marine Corps in order to maintain proper order and discipline.  The Applicant's misconduct is documented in his service record, which is marred by a conviction at a special court-martial for violation of UCMJ Article 112a Wrongful use of a controlled substance.  This misconduct substantiates the reason for his separation as well as his characterization of service under other than honorable conditions.  No other narrative reason for separation or characterization could more clearly describe why the Applicant was discharged.  Relief on this basis is denied.

The following is provided for the edification of the Applicant.  There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the Marine Corps.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance-free lifestyle, and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided any documentation for the Board to consider.  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.  The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time.  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 31 August 2001. 

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.