DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAW ANNEX

WASHINGTON DC 20370-5100

BJG
Docket No: 7889-97
19 August 1999

De~~

This is in reference to your application for correction of your naval record pursuant to the
provisions of title 10 of the United States Code, section 1552.

You requested removal of your fitness reports for 1 November 1992 to 1 March 1993
and 1 November 1993 to 28 February 1994, promotion to pay grade E-8 effective
1 December 1993 and to E-9, and setting aside of your general discharge of 8 March 1994.

A three-member panel of the Board for Correction of Naval Records, sitting in executive
session, considered your application on 18 August 1999. Your allegations of error and
injustice were reviewed in accordance with administrative regulations and procedures
applicable to the proceedings of this Board. Documentary material considered by the Board
consisted of your application, together with all material submitted in support thereof, your
naval record and applicable statutes, regulations and policies.
considered the advisory opinions furnished by the Headquarters Marine Corps (HQMC)
Military Law Branch (JAM2 and 3) dated 27 August 1997, 23 February 1998,
27 January 1999, and 22 March 1999; the HQMC Performance Evaluation Review Board
(PERB) dated 17 October 1997; the HQMC Separation and Retirement Branch (MMSR-6J)
dated 30 December 1997 and 10 May 1999; the HQMC Promotion Branch (MMPR-2) dated
22 January 1998 and the memorandum for the record dated 17 August 1999, copies of which
are attached. They also considered your counsel’s rebuttal letters dated 9 March 1998 and
5 March and 14 May 1999.

In addition, the Board

After careful and conscientious consideration of the entire record, the Board found that the
evidence submitted was insufficient to establish probable material error or injustice.

The Board substantially concurred with the advisory opinions dated 27 January and
10 May 1999 in finding that your discharge should stand. They were unable to find you did
not illegally use drugs. The fact that a court-martial made no finding that you illegally used
drugs did not convince the Board that you did not commit such misconduct.

Your leave and earnings statement at enclosure (11) to your application did not prove you
were promoted to pay grade E-8.
determination that you did illegally use drugs, the Board found that your promotion was not
warranted, and that a statement from you regarding your promotion would not have made any
difference.

In light of the administrative separation board

Since the Board was unable to find that you did not illegally use drugs or that your discharge
was unwarranted, they had no basis to remove the contested fitness reports.

In view of the above, your application has been denied. The names and votes of the
members of the panel will be furnished upon request.

It is regretted that the circumstances of your case are such that favorable action cannot be
taken. You are entitled to have the Board reconsider its decision upon submission of new and
material evidence or other matter not previously considered by the Board.
In this regard, it is
important to keep in mind that a presumption of regularity attaches to all official records.
Consequently, when applying for a correction of an official naval record, the burden is on the
applicant to demonstrate the existence of probable material error or injustice.

Sincerely,

W. DEAN PFEIFFER
Executive Director

Enclosures

Copy to:
Alice L. Cate, Esq.

_______________________

SJA TO CMC COMMENT on MMER r/s of 10 Jul 97

-7~c(q-q7

5800
JAM3

AH(~

? ( 19°1

Subj: ~

VALUATION REVIEW BOARD OF (FORMER)- G~GT

Ref:

(a) MCO P1900.16D
(b) 10 U.S.C. Sec. 1176

We are asked to provide...an opinion as to whether Petitioner -

1.
was improperly administratively discharged by the Commanding
General, I Marine Expeditionary Force, FMF, following his
administrative discharge board.
was improper and requests to be re—instated to active duty,
promoted to E—9, and to receive corresponding backpay.

Petitioner asserts his discharge

We recommend relief be granted in part.

2.
follows.

Our analysis

Background.

Petitioner was initially identified by a

3.
urinalysis test in February 1992, as having illegally used
cocaine and marijuana.
On 2 November 1993, Petitioner was
notified by the Commanding Officer, 9th Communication Battalion,
I Marine Expeditionary Force,
that he intended to recommend that
Petitioner be discharged pursuant to paragraph 6210.5 of
reference (a) (misconduct due to drug abuse).
discharge board was subsequently convened on 7~-8December 1993
where Petitioner was present and represented by military and
civilian counsel.
unanimously that the allegation set forth in the notification was
supported by a preponderance of the evidence and recommended that
Petitioner be administratively separated with a general
discharge, under honorable conditions.
On 8 February 1994, the
Commanding General, I Marine Expeditionary Force, directed that
Petitioner be separated with a general discharge.

The administrative discharge board found

An admInistrative

As provided in the Staff Judge Advocate’s recommendation

4.
dated 3 February 1994, Petitioner had completed 5 years, 6 months
of active service on his current enlistment which began 5 May
1988.
The recommendation further noted that prior to his 5 May
1988 re-enlistment, Petitioner had completed 13 years, 2 months
of active service.
specifically advise the Commanding General that Petitioner had
completed a total of 18 years, 8 months of prior active service
and was, therefore, protected from involuntary separation absent
approval by the Commandant of the Marine Corps. $~ paragraph
6307.lc of reference (a).

The recommendation did not, however,

On 8 February 1994, after considering the Staff Judge

5.
Advocat&s review and recommendation, the Commanding General
improperly ordered Petitioner administratively discharged by

- I (

Subj:

PERFORMANCE EVALUATION REVIEW BOARD OF (FORMER) GYSGT

m1r~JJ~JJii1i*i~*r

~ØJ~~~JSMC

reason of misconduct due to drug abuse.
further ordered that Petitioner’s administrative discharge be
characterized as general under honorable conditions and .t1~at it
be effected within 20 days.
on 8 March 1994.
completed 19 years and 20 days of active service.
completed on 8 March 1994.

On the day of his discharge, Petitioner had
See DD 214

Petitioner was thereafter discharged

The Commanding General

We find no substantive error regarding the administrative

6.
discharge board procedures themselves, however, we do find that
the Commanding General, I Marine Expeditionary Force, did not
have the authority to administratively discharge Petitioner
because Petitioner had more than 18 years of active service
before involuntary separation procedures were initiated.
Pursuant to paragraph 6307. ic of reference (a), when the member
being involuntarily separated has 18 years or more service, “the
separation authority is the Commandant of the Marine Corps.”
When reviewing the administrative discharge board’s
recommendation, CMC considers whether the Marine should be
immediately separated, the proper characterization of the
discharge, whether to suspend the recommended administrative
discharge, or whether the Marine has future potential in the
Fleet Marine Corps Reserve.
The SJA’s recommendation dated 3
February 1994, did not address this provision regarding this
special procedural protection afforded 18 year Marines facing
administrative separation.
Petitioner’s administrative discharge and the ~wrresponding
service characterization are invalid.

Accordingly, we believe that

Recommendation.

7.
We recommend that you direct the Commanding
General, I Marine Expeditionary Force, to re—submit Petitioner’s
administrative discharge separation package to CMC for review and
any further appropriate action.
Petitioner should be considered as having been separated at the
end of his enlistment contract or whether he has yet to be
properly discharged (given the aforementioned analysis), we
recommend this issue be forwarded to MMSR to determine
Petitioner’s present active duty status and whether he is
entitled to constructive service time beyond his last enlistment
contract.

Since it is unclear whether

Additionally, we recommend MMPR determine whether this error

8.
had any effect on Petitioner’s apparent lack of suitability for
promotion to pay grade E—8 in 1993.
In this regard, we note the
record reflects that Petitioner’s promotion to pay grade E—8 was
held in abeyance in 1993 per the direction of MMPR-2 pending
completion/results of Petitioner’s then pending special
court—martial.
determined, unanimously, that the evidence presented established
that Petitioner had committed the misconduct alleged, i.e.,
illegal use of cocaine and marijuana.

The administrative discharge board subsequently

The record further

2

Subj:

PERFORMANCE EVALUATION REVIEW BOARD OF (FORMER) GYSGT

~

~JI~~C

reflects that the then Commanding Officer, 9th Communications
Battalion concurred in the Board’s findings and recommended
discharge under other than honorable conditions.

Following the receipt of comments from MMSR and NNPR, we
the Performance Evaluation Review Board or the

9.
recommend that
Board for the Correction of Naval Records return the matter to
this branch for additional review and comment.
in this matter ~

____

~t of contact
I

___

3

DEPARTMENT OF THE NAVY

HEADQUARTERS UNITED STATES MARINE CORPS

2 NAVY ANNEX

WASHINGTON, DC 20380-1 77~

IN REPLY REF~

1 4 ~ TO
JAM 3

23FF~ M8

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR THE CORRECTION

OF NAVAL RECORDS

Subj:

~

GYSGT

Ref:

(a) SJA to CMC comment on MNER r/s of 10 Jul 97
(b) Memo for BCNR 1400/4 MMPR-2 of 22 Jan 98
(C) Memo for BCNR 1900 NNSR-6J of 30 Dec 97
(d) MCO P1900.16D
(e) 10 U.S.C. 1169
(f) 10 U.S.C. 1552

1.
In reference (a) we reviewed the propriety of Petitioner’s
discharge and recommended the Enlisted Promotions Branch (MMPR)
and the Separations and Retirement Branch (MNSR) provide opinions
as to Petitioner’s present active duty status and his eligibility
for promotion.
those additional opinions and conclude that Petitioner should be
granted partial relief.

See references (b) and (c) .

We have reviewed

It is necessary to correct an inaccuracy in reference (b)

2.
There MMPR indicates that Petitioner received a General (under
honorable conditions) discharge as the result of a special
court—martial.
the result of administrative separation proceedings, not a
special court-martial.

That is not correct.

Petitioner’s separation was

For those enlisted Marines involuntarily separated

As stated in reference (a), Petitioner was improperly

3.
discharged.
with over 18 years of service, the Commandant of the Marine Corps
(CMC)
reference (d) .
of service, by the Commanding General, I Marine Expeditionary
Force (CG I MEF) .
references (d) and (e) .

Petitioner’s separation clearly violated
Relief is, therefore, appropriate.

is the separation authority under paragraph 6307.lc of

Petitioner was separated with 19 years, 20 days

3.
In light of the responses provided in references (b) and (c),
we have reconsidered our previous view that the matter should be
referred to the Commandant of the Marine Corps.
In essence this
course of action would treat CG I MEF’s separation of Petitioner
as a mere recommendation.
discharge has been effected, albeit erroneously, the matter is
more appropriately referred to the Secretary of the Navy, acting
through the Board for Correction of Naval Records (BCNR)

However, because Petitioner’s

Subj: ~

GYSGT

Reference (f) gives the Secretary (and BCNR on his behalf) broad
latitude to correct errors or injustices pursuant to reference
(f) .
granted.

Consequently, we defer to BCNR as to what relief should be

Lieutenant Colonel
U.S. Marine Corps
Head, Military Law Branch
By direction of the
Commandant of the Marine Corps

2

DEPARTMENT OF THE NAVY

HEADQUARTERS UNITED STATES MARINE CORPS

2 NAVY ANNEX

WASHINGTON. DC 20380—1775

7~~1~7

IN REPLY REFER TO:

1070
JAM2
2 7 JAN ~ggg

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF

NAVAL RECORDS

Subj:

Ref:

-

BOARD FOR CORRECTION OF NAVAL RECORDS (BCNR) APPLICATION
IN THE CAS~OF (FORMER) GUNNERY SERGEAN~~I~~

ifl1~1~W1~U~”W.

S. MARINE CORPS

(a) MCO P1900.16 (MARCORSEPMAN)
(b) Manual for Courts—Martial, United States
(C)

JAGINST 5800.7C (JAGMAN)

(1984)

We are asked to provide an opinion regarding the propriety of

discharge on 8 March 1994 for

1.
Petitioner’s
misconduct due to drug abuse.

administrative

We find no legal defect

in the processing of Petitioner’s

2.
case up to the point that, as discussed in our comment of 10 July
1997 and our advisory opinion of 23 February 1998, the Commanding
General, I Marine Expeditionary Force (CG I MEF) improperly acted
as separation authority instead of forwarding the case to the
Commandant of the Marine Corps (~MC) for action as required under
reference (a).
Naval Records on the issue of whether Petitioner is entitled to
relief, we do not believe that this lone technical defect could
have prejudiced Petitioner.
view, that a Gunnery Sergeant with a substantiated instance of
drug abuse would not have been discharged on that basis.

Although we defer to the Board for Correction of

It is extremely unlikely, in our

3.

Background

a.

On 24 March 1993, a single specification alleging that

On 13 August, the military judge granted

Petitioner violated Article 112a, Uniform Code of Military
Justice (UG’IJ) by using cocaine was referred for trial by special
court-martial.
Petitioner’s motion to delay the trial until authorization to
grant immunity to a civilian witness could be obtained from the
United States Attorney General.
General authorized the immunity grant.
On 2 November, Petitioner
was notified that he was going to be processed for administrative
separation for misconduct due to drug abuse, and on 1 December
the charge was withdrawn from the court-martial.
Petitioner’s
three—member Administrative Discharge Board sat from 7 to 8
December, found unanimously that the allegation of drug use was
substantiated, and recommended

separation with a general (under

On 15 October, the Attorney

Subj:

BOARD FOR CORRECTION OF NAVAL RECORDS (BCNR),_APPLICATION
IN THE CASE OF (FORMER) GUNNERY SERGEANT~!J~t~~J
~

S. MARINE CORPS

honorable) characterization of service.
discharged by CG I MEF on 8 March 1994.

Petitioner was

7~q~97

b.

On 20 April 1997, Petitioner applied for numerous

measures of relief which are the subject of separate advisory
opinions prepared by this and several Headquarters Marine Corps
staff divisions over the past two years.
Petitioner’s complaint is that the cocaine charge was improperly
withdrawn from the court—martial because the Government knew it
could not prove the charge in court.
the convening authority chose instead to pursue the matter before
an administrative board, where the burden of proof is by a
preponderance rather than beyond reasonable doubt and where rules
of evidence and constitutionally required procedure do not apply.
Petitioner maintains that, apart from CG I MEF’s incorrectly
acting as separation authority, this purported impropriety
warrants complete restoration.

According to Petitioner,

The crux of

c.

Related to this complaint, Petitioner argues that the

military judge presiding over his trial influenced the convening
authority to withdraw the charge in favor of an alternative
resolution, depriving him of his right to due process.
In
support, Petitioner offers an affidavit from his civilian counsel
stating that she was with the trial counsel when the military
judge called to suggest that the convening authority withdraw the
charge.
of court before the charge was withdrawn, the military judge
admitted making the call.
transcript of this last session was not maintained, implying some
bad faith on the Government’s part.

This affidavit also notes that, during the last session

Petitioner next notes that a verbatim

4.

Analysis

a.

Petitioner’s argument about improper conduct by the

First, there

military judge has neither factual nor legal merit.
is nothing improper, let alone sinister, in the fact that a
transcript could not be made of the session at which the judge
admitted making the comment to trial counsel, even though all of
the previous sessions were transcribed.
Since the case resulted
in a withdrawal of the charge, the Government was never obliged
under Rule for Court-Martial 1103(e) of reference (b) to prepare
a verbatim transcript of any portion of the court—martial
proceedings.
0150b of reference (c) to retain the audio recordings and
stenographer’s tapes.
to and including the granting of the defense motion is

Accordingly, it was unnecessary under paragraph

Moreover, the transcription of sessions up

2

Subj:

BOARD FOR CORRECTION OF NAVAL RECORDS (BC~)~~~APPLICATION
IN THE CASE OF (FORMER) GUNNERY SERGEANI~-If1M

-~-‘~—

___________

S. MARINE CORPS

It is common practice to transcribe motions

unremarkable.
sessions for a judge to use in preparing his ruling.
common to transcribe sessions related to rulings which the
Government may reasonably be expected to contest through
interlocutory appeal.
on witness production is such an issue.

Granting an indefinite continuance based

It is also

b.

Moreover, even were a judge to go

There is nothing remarkable about a judge commenting to a
trial counsel concerning the difficulties that may be encountered
in putting on a given case.
beyond the bounds of detached observation and did abandon his
impartiality by assisting a trial counsel, such improper conduct
would taint the court—martial, not an entirely separate
proceeding such as an administrative board.
in the light most favorable to Petitioner, there is no evidence
to suggest any improper contact between the judge and the
convening authority.
know and apply the law, and since there are no indications that
the judge in Petitioner’s case failed to do so, speculation on
this point should be ignored.

Since the law presumes that military judges

Finally, even viewed

c.

Petitioner’s argument that he was denied due process

Petitioner’s

Courts—martial are criminal forums created

The amount of process that is due depends on the

because he could not contest the charge at a court-martial is
without merit.
type of proceeding, and less process is due an administrative
board respondent than a court—martial accused.
assertion that he was somehow entitled to contest the charge in
court rather than in an administrative board ignores the
substantive distinction between a court-martial and an
administrative board.
to enforce discipline by punishing violations of the law;
administrative boards are non-criminal forums designed to enforce
personnel policy.
Petitioner’s argument also ignores the fact that the withdrawal
inured to his benefit, significantly reducing his potential
jeopardy by removing the possibility of criminal conviction and
punishment.
would have been in had the convening authority taken the
extremely lenient course of not referring the charge to trial;
paragraph 6210.5 of reference (a) made separation processing in
Petitioner’s case mandatory.
presupposes that he would have been acquitted at a court—martial.
That is purely speculative.

In essence, Petitioner was put in the position he

They are different in kind, not degree.

Finally, Petitioner’s argument

3

Subj:

BOARD FOR CORRECTION OF~.NAVAL RECORDS (BCNR)~.APPLICATION
IN THE CASE OF (FORNER)~GUNNERY SERGEA~$I*J~~

_____

_____

- MARINE CORPS

There is no evidence to suggest any impropriety in the

d.
administrative proceeding itself.
cMC for final action constitutes the only procedural defect in
the handling of Petitioner’s case.
unlikely that the failure prejudiced Petitioner’s case.

Failure to forward the case to

As noted, however, it is very

Conclusion.

Accordingly, for the reasons set forth above, we

5.
do not support granting any relief unless the Board for
Correction of Naval Records believes Petitioner was actually
prejudiced by the Government’s failure to forward his case to CMC
for final action.

.~.i, Military L~...z Branch
Judge Advocate Division

4

DEPARTMENT OF THE NAVY

HEADQUARTERS UNITED STATES MARINE CORPS

2 NAVY ANNEX

WASHINGTON, DC 20380-1 775

IN REPLY REFER TO

1070
JAM2

2 2 M~Riggg

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF

NAVAL RECORDS

Subj:

BOARD FOR CORRECTION OF NAVAL RECORDS (BCNR
IN THE CASE OF (FORMER) GUNNERY SERGE
MARINE CORPS

PPLICATION

Ref:

(a) PHONCON CMC (JAM) ~~m~Jj~NR

(Performance Section)

(b ~

of 22 Mar 99

(C) PHONCON CMC (JA~~1t~$jL.

22 Mar 99

(MNER~TIJS1~I

___

Reference (a) clarified that BCNR does not require legal

1.
review of the subject case beyond our reviews of 10 July 1997, 23
February 1998, and 27 January 1999.
Rather, BCNR requests review
by the cognizant staff section that would have reviewed the case
in the normal course of business had Petitioner not been
discharged by CG I MEF on 8 March 1994.
established that CMC (MNSR—3) would have reviewed Petitioner’s
proposed separation, and is prepared to do so now.
advised CMC (MMER) that rerouting was appropriate.

Reference (b)

Reference (c)

This case is returned to CMC (NMER) for tasking to CMC

2.
(NMSR—3)

M1I1t&~

1

~

Branch

Judge Advocate Division

DEPARTMENT OF THE NAVY

HEADQUARTERS UNITED STATES MARINE CORPS

~I

IA~flI

WAS! Johnson’ Stephen L.

“‘

101

i~’~’~~T7

IN REPLY REFER TO
1610
MMER!PERB
17 Oct 97

*07889—97 *

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF

NAVAL RECORDS

Subj: MARINE CORPS PERFORMANCE EVALUATION REVIEW BOARD (PERB)

Ref:

(a~J_~j
(b) MCO P1610.7D w/Ch 1-6

JiForm 149 of20 Apr 97

1. Per MCO 1610.llA, the Performance Evaluation Review Board, with three members present,
met on 16 October 1997 to cons1~~~ Tf~ J~T,Letit1oncontained in reference (a) Removal
ofthe following fitness reports was requested:

a. Report A - 921101 to 930301 (CD)

b. ReportB-931101 to 940228 (EN)

Reference (b) is the performance evaluation directive governing the submission ofboth reports.

2. The petitioner, via his legal counsel, has challenged his administrative discharge from the
Marine Corps and requested restoration to active duty, restoration of promotion to the grade of
Master Sergeant, promotion to the grade ofMaster Gunnery Sergeant, and all back pay and
allowances. Included in this request, although the reasons therefore have not been specified, is a
request for the removal ofthe fitness reports identified herein. Lacking anything to the contrary,
the Board must presume the basis for challenging the fitness reports is reference to both drug
use/abuse and the administrative discharge.

3. In its proceedings, the PERB concluded that both reports are administratively correct and
procedurally complete as written and filed. Succinctly stated, unless relief is granted regarding
the administrative discharge, the reports should remain valid as filed. Should that discharge,
however, be determined to be flawed, then removal ofthe reports is both recommended and
warranted.

4. The board’s opinion, based on deliberation and secret ballot vote, is that the contested fitness
reports should remain a part ~

military record

Subj: MARINE CORPS PERFORMANCE EVALUATION REVIEW BOARD (PERB)

ADVISORY OPINION ON P’
MARINE GUNNERY

APPI.TC

5. The case is forwarded for final action.

7c(c~/-q7

-

~, Performance
Evaluation Review Board
Personnel Management Division
Manpower and Reserve Affairs
Department
By direction ofthe Commandant
ofthe Marine Corps

2

DEPARTMENT OF THE NAVY

HEADQUARTERS UNITED STATES MARINE CORPS

2 NAVY ANNEX

WASHINGTON, DC 20380-1775

7~q -q7

IN REPLY REFER TO

1900
MMSR- 6J
30 Dec 97

MEMORN~DUN FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF

NAVAL RECORDS

Subj:

P~CATION IN THE CASE OF GUNNERY SERGEANTLJIJJ~
~J$~SMC

(RET.)

Ref:

(a) MMER Route Sheet of 12Dec97, Docket No. 3590-97

The reference requests an advisory opinion on former Gunnery

1.
Sergeant~j~*~ti~ion to correct his record to show that
he was not discharged from the Marine Corps.

Former Gunnery Sergeant

2.
Under Honorable Conditions on
He had completed
19 years and 20 days of active service when he was discharged.
Former Gunnery Sergean~JI*~~Lhas
was, therefore, not retirement eligible when he was discharged.
His active duty status ended on the date of discharge.

as given a General Discharge

no constructive

~arch 1994.

service.

He

3.
Former Gunnery Sergear~~~flN~discharge was done at the
command level and not approved or directed by the Commandant of
the Marine Corps.

We therefore concur with JAM-3, and recommend that former
separation

dministrative

discharge

4.
Gunnery Sergean
package be subm
review and appropriate

e

o the Commandant of the Marine Corps for

action.

~, Separation

and

Retirement Branch
By direction of the Commandant
of the Marine Corps

DEPARTMENT OF THE NAVY

HEADQUARTERS UNITED STATES MARINE CORPS

3280 RUSSELL ROAD

QUANTICO, VIRGINIA 22134-5103

IN REPt~IEOER TO:

MMSR- 6J
10 May 99

MEMORANDUT4 FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF

NAVAL RECORDS

Subj:

Ref:

BCNR REQUEST FOR REVIEW OF THE ADMINISTRATIVE SEPARATION
OF FORMER GUNNERY S ERGEANT
0193 USMC

(a) SrMbr, AdminDisBd ltr
(b) MCO P1900.16E (MarCorSepMan)
(c) SJA Comment 5800 JAM3 of 27 Aug 97
(d) SJA Memo 1400 JAM3 of 23 Feb 98
(e) SJA Memo 1070 JAM2 of 27 Jan 99

1910 AdLaw of 10 Jan 94 w/ends

1. Board for Correction
reviE-iof
~

the administrative

recommended in reference

of Naval Records
of

discharge

‘sted positive

in two separate

(BCNR) has requested
a
former Gunnery Sergeant

(a) . Gunnery Sergeant

urinalysis
by his

tests

for use

command of
discharge

by

intention

to process

and marijuana.

He was notified
him for administrative

of cocaine
their
reason of misconduct
acknowledged
receipt
to present his case before
The board unanimously
of drug abuse and recommended his discharge with a general,
honorable

due to drug abuse.
of
the notification

found the evidence

an administarative

characterization

of service.

conditions,

discharge

Gunnery Sergean~~~j~
and exercised
right

his

supported the allegation

board.

under

2.

_____

In the normal course of events,

because Gunnery Sergeant

over eighteen years of active

service,

the Commanding

I Marine Expeditionary

~enera1,
the case to the Commandant of the Marine Corps (MMSR-3) per
paragragh 6307 of reference (b) with the recommendation
that
Gunnery Sergeant
due to drug abuse wIt
characterization of service.

~
a general, under honorable conditions,

discharged by reason of misconduct

(MEF) would have forwarded

Force

Upon receipt at MMSR-3, Gunnery Sergeant~

3.
have been routed to the Staff Judge Advocate of the Marine Corps
(SJA) for review to determine that all procedures and legalities
were followed and that Gunnery Sergeant~~~~hadbeen afforded
In references Cc~)~’Td~3and (e) the SJA
a fair and just process.
stated that the administrative discharge procedures were proper
up until the erroneous discharge by the Commanding General, I
MEF.
Had the Commanding General, I MEF followed proper procedure
and forwarded the case, the SJA would have deemed the entire pro-
cess as “without legal objection”.

~case

would

the command,

4. Based on the recommendation of
finding and recommendation of the administrative discharge board,
the projected recommendation of the Commanding General, I MEF,
and the positive review of the SJA, Gunnery Sergeant~L~Wt~
case would have been forwarded to the Director, Personnel Manage-
ment Division (Dir, MM) recommending approval of the discharge of
Gunnery Sergeant ~‘~~th
tions, characterization of service by reason of misconduct due to
drug abuse.

a general, under honorable condi-

the unanimous

5.

Upon receipt of the case by Dir, MM, Gunnery Sergeant

____________

r~ictive duty

Further, Gunnery sergeant~

would have been reviewed in its entirety

and based
on the evidence, the recommendation for discharge would have been
approved.
terminated on 8 March 1994 with his
entitled
to an
service
SergeanL~~,~
does not
E-8 list.

specifically
support promotion and he was

Gunnery
with regard to drug use,

ischarge.
beyond that date.

He is not

removed from the FY 1994

constructive

~.cord,

~ener~

Brigadier
United States Marine Corps
Director,
Personnel
Management Division

DEPARTMENT OF THE NAVY

HEADQUARTERS UNITED STATES MARINE CORPS

2 NAVY ANNEX

WASHINGTON. DC 20380-1775

7~’q-q7

INiR1~&F~R TO.

.L’±U U / ‘*
MMPR-2
22 Jan 98

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF

NAVAL RECORDS

Subj:

ADVISORY OPINION IN THE CASE OF MR.

~

MARINE

Ref:

(a) MMER Route Sheet of 12 Dec 97, Docket No. 3590-97

Former Gunnery SergeantJ~~~~U selected for promotion to

1.
master sergeant by the 1993 Sergeant Major through Master Sergeant
Selection Board; however, his certificate of appointment was being
held in abeyance until the completion of a special court-martial
(SPCM).
General Discharge Under Honorable Conditions

As a result of the SPCM, Gunnery Sergeant~~~

from the Mariie Corps.

ceived a

If Gunnery Sergeant~L~~d remained on active duty after the

2.
completion
promoted because of his recent misconduct.
qualified for promotion he would have been promoted on
1 January 1994.

SPCM it is unlikely

of his

that he would have been

If he had remained

Head, EnIi. Y~d Promotions

~‘;~~st;;i~i
Branch Promotions
By direction of the
Commandant of the Marine Corps

7~q~-q7

MEMORANDUM FOR THE RECORD

BOARD FOR CORRECTION OF NAVAL RECORDS (BCNR)
PERFORMANCE SECTION
2 NAVY ANNEX, SUITE 2432
WASHINGTON, DC 20370-5100
TELEPHONE: DSN 224-9842 OR COMM (703) 614-9842
FAX: DSN 224-98 7~. COMM (703) 614-9857, OR (815) 328-0742
E-MAIL

Sh~~VY MIL

DATE: 17AUG99
DOCKET NO: 7889-97
PETITIONER (PET): EX-GYSG
PARTY CALLED: M
TELEPHONE NUMBER: (7C
WHAT I SAID: I ASKEq
PREPARED THE ADVLI
WHAT PARTY SAID
PREPARED THE ADVISORY OPINION,
SIGNED THE OPINION, IS IN CHARGE OF THE ENTIRE PERSONNEL
MANAGEMENT DIVISION. BOTH MMSR-6J AND MMSR-3 FALL UNDER HIM, AS
WELL AS NUMEROUS OTHER CODE SECTIONS.

‘S CASE RATHER THAN MMSR-3.

ORMED ME ALTHOUGH MMSR-6J

USMC, WHO

USMC

—

~Y OPINIO

~.‘HYIT APPEARED THAT MMSR-6J