DEPARTMENT  OF THE  NAVY 

BOARD  FOR  C O R R E C T I O N   O F   NAVAL  RECORDS 

2  NAVY  ANNEX 

W A S H I N G T O N   DC  2 0 3 7 0 - 5 1 0 0  

ELP 
Docket No.  2329-00 
2 March 2001 

From: 
To: 

Chairman, Board for Correction of Naval Records 
Secretary of the Navy 

-- 

Subj: 

Ref: 

(a) 10 U.S.C.1552 

Encl : 

(1) DD Form 149 w/attachments 
(2) Case Summary 
(3) Subject's Naval Record 

1.  Pursuant to the provisions of reference (a) , Petitioner, a 
former enlisted member of the Marine Corps, applied to this 
Board requesting, in effect, that his record be corrected by 
upgrading his general discharge, changing the reason for 
discharge to expiration of enlistment, and removing all 
derogatory information. 

2.  The Board, consisting of Messrs. Pfeiffer, Ensley, and 
Bishop  reviewed Petitioner's  allegations of error and injustice 
on 22 February 2001 and, pursuant to its regulations, determined 
that the corrective action indicated below should be taken on 
the available evidence of record.  Documentary material 
considered by the Board consisted of the enclosures, naval 
records, and applicable statutes, regulations and policies. 

3.  The Board, having reviewed all the facts of record 
pertaining to Petitioner's  allegations of error and injustice 
finds as follows: 

. . 

. a 

a.  Before applying to this Board, Petitioner exhausted all 

administrative remedies available under existing law and 
regulations within the Department of the Navy. 

b.  Although it appears that Petitioner's  application to 

the Board was not filed in a timely manner, it is in the 
interest of justice to waive the statute of limitations and 
review the application on its merits. 

c.  Petitioner enlisted in the Marine Corps on 22 July 1982 

for four years at age 21.  The record reflects that he was 
advanced to LCPL  (E-3) and served for 21 months without 
incident.  However, during the four month period from April to 
August 1984, he received two nonjudicial punishments  (NJP) for 
use of marijuana and disrespect.  On 16 April 1984 he was 
counseled on the use of illegal drugs and his frequent 
involvement with military authorities. 

d.  The record reflects that on 19 November 1984, 

- - -- 
Petitioner was transferred from the 3rd Tank Battalion at 
29 Palms, CA  and reported the following day to the 9th 
Communication Battalion at Camp Pendleton, CA.  On 29 November 
1984, a Navy drug laboratory reported to the commanding general 
at 29 Palms that Petitioner's  urine sample, received on 23 
November 1984, had tested positive for marijuana.  The specific 
date of the urinalysis is not shown in the record.  Out of the 
76 urine samples submitted, the two which tested positive were 
assigned consecutive accession numbers. 

e.  On 19 December 1984, Petitioner received his third NJP 
for use of marijuana while at his previous command.  Punishment 
imposed consisted of reduction in rank to W T  (E-1) , forfeitures 
of $200 per month for two months, and 30 days of restriction and 
extra duty.  The NJP authority suspended the restriction for a 
period of 30 days.  On the following day, Petitioner was 
referred for a dependency evaluation and the conmanding 
officer's  endorsement indicated Petitioner had potential for 
further service.  Petitioner was determined by a medical officer 
to be non-dependent.  Petitioner denied use of marijuana or any 
use of drugs since his NJP in April 1984.  He desired to remain 
in the Marine Corps to help support his mother.  During the 
month of January 1985, Petitioner provided five urine samples, 
the results of which are not documented in the record. 

f.  On 22 January 1985, Petitioner was notified that he was 

being processed for discharge under other than honorable 
conditions by reason of misconduct due to drug abuse.  He was 
advised of his procedural rights and elected present his case to 
an administrative discharge board.  (ADB) .  On 28 January 1985 
the conmanding general directed that the ADB  be conducted 
expeditiously, giving due consideration to counsells need to 
prepare for Petitioner's  case. 
commander recormended to the legal services support team that 

Thereafter, the company 

Petitioner be discharged with a general discharge under less 
than honorable conditions [sic]. 

g.  On 1 February 1985, an ADB reconmended that Petitioner 

be discharged under other than honorable conditions by reason of 
misconduct due to drug abuse.  The ADB1s record of proceedings 
is not on file in the record.  The discharge authority approved 
the ADB recommendation and directed discharge under other than 
honorable conditions.  Petitioner was so discharged on 6 March 
1985. 

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h.  On 8 March 1990, Petitioner appeared with counsel 

before the Naval Discharge Review Board  (NDRB) .  Petitioner s 

explained the circumstances that led to his first two NJPs. 
With regard to the first NJP, he claimed that he ingested 
marijuana unknowingly when his girlfriend prepared some tea with 
marijuana in it, and the second NJP was only a technical 
violation because he told a noncordssioned officer  (NCO) to 
back off after being harassed and poked by the NCO.  The NDRB 
found both explanations to be plausible and credible, but could 
not completely dismiss his culpability.  With regard to the 
third NJP, the NDRB specifically noted that it was somewhat 
unusual that the two positive tests out of 76 samples submitted 
had consecutive sequence numbers, and that a social security 
number had been incorrectly transcribed.  The NDRB believed 
that this increased the probability of irregular collection 
procedures.  The NDRB noted the contention of Petitioner and 
counsel that on 20 November 1984, he submitted urine specimens 
upon transfer and upon reporting to his new command, and that 
one was positive and the other was negative.  The NDRB also 
noted a number of inconsistencies in this case, such as the 
commanding officer  (CO) recommending a general discharge under 
less than- honorable conditions; sending Petitioner to the Drug 
and Alcohol Abuse Control Officer for evaluation and citing him 
as having potential, but at the same time recommending his. 
discharge; placing him on a surveillance program and suspending 
a portion of the NJP; all of which indicated that the CO 
actually wanted to retain Petitioner.  Further, The NDRB 
believed that the commanding general's  direction that the ADB be 
conducted expeditiously was detrimental to Petitioner1s right to 
a fair hearing and resulted in an unstudied or hasty decision by 
the ADB.  The NDRB found Petitioner to be credible and candid in 
his testimony and believed the circumstances described by 
Petitioner had occurred.  The NDRB concluded that the 
characterization and the basis for Petitionerls discharge should 

be changed to show he was separated with general discharge under 
honorable conditions by reason of best interests of the service. 

i.  Petitioner now states he was to be represented by a 

captain at the ADB, but he never showed up due to some 
unforeseen commitments.  He claims that the ADB replaced the 
absent officer with a second lieutenant, who had no time to 
prepare for the case and was overwhelmed and intimidated by  the 
ADB and the recorder.  Petitioner supports his application with 
documentation to show that since his discharge from the -pjarine 
Corps, he returned to college, received his degree and pursued a 
career the business field with a national bank, where he was 
instrumental in setting up special collection procedures to 
assist military members stationed overseas with credit card 
accounts.  During his more than five years with the bank, he 
received numerous certificates of recognition, commendation, and 
appreciation for his customer assistance and community service. 
In September 1996, he joined the Wilmington Police Department 
and has been cited for his professionalism and assistance in the 
return of a stolen automobile, his apprehension of an armed 
suspect and recovery of stolen electronics equipment and stolen 
handguns, and saving of the life of an unconscious person while 
administering CPR until paramedics arrived.  His supervising 
captain and inspector submit letters to the Board attesting to 
his professionalism, dedication and community volunteer 
involvement.  His captain states that Petitioner was chosen as a 
sector specialist for his willingness to get the job done and 
works wlth the community to solve many problems that exist in 
the district.  He is currently a candidate for promotion 
corporal and is being considered for a position on the 
department's  crisis management hostage negotiating team. 
Counsel for Petitioner asserts that Petitioner was denied due 
process during his ADB due to his command's  operational 
corrPnitment, and questions the command's  competency in this case 
given the inconsistencies noted by the NDRB. 

i.  Regulations provide that individuals discharged by 
reason of best interest of the service receive the type of 
discharge warranted by the service record.  Character of service 
is based, in part, on conduct and proficiency averages which are 
computed from marks assigned during periodic evaluations.  At 
the time of Petitioner's  transfer his conduct and proficiency 
averages were 3.9  and 4.5,  respectively.  After his reduction in 
rank, he received additional marks of 2.0  in conduct and 3.9  in 
proficiency.  This lowered his conduct and proficiency averages 
to 3.6 and 4.4,  respectively.  A minimum average mark of 4.0  in 

conduct was required for a fully honorable characterization at 
the time of his discharge. 

CONCLUSION: 

Upon review and consideration of all the evidence of record, the 
Board concludes that Petitioner's  request warrants partial 
favorable action.  The Board notes the NDRB findings and its 
action to recharacterize Petitioner's  service to a general 
discharge and change the reason for discharge to best in-terests 
of the service.  The Board also notes the absence of ~ ~ G A D B  
proceedings and other evidence that would have been considered. 
The Board believes, as did the NDRB, that the commanding 
general's  direction that Petitioner's case be expeditiously 
conducted because of operational comnitments may have been 
prejudicial and denied him due process, especially since there 
was a change in counsel and the new lawyer apparently had little 
or no time to prepare for his client's  case.  However, absent 
the record of proceedings and the evidence that Petitioner 
submitted two urinalyses on the same day with different results, 
the Board finds no compelling basis for removing the derogatory 
documentation surrounding his discharge from the record or 
changing the reason for discharge to expiration of enlistment. 

However, the Board notes that despite being discharged under 
other than honorable conditions, Petitioner returned to college, 
earned a degree, and has made significant post-service 
achievements in which he has been cited for his professionalism 
and community service both in a business environment and as a 
police officer.  The Board notes that such post-service 
achievements are somewhat rare and believes that they far 
outweigh Petitioner's  service misconduct.  Although his marks do 
not warrant a fully honorable discharge, the Board now concludes 
that it would be appropriate and just to recharacterize his 
general discharge for fully honorable as an exception to policy. 

RECOMMENDATION: 

a.  That Petitioner's  naval record be corrected to show 

that he was honorably discharged on 6 March 1985 by reason 
Secretary of the Navy Plenary Authority vice the general 
discharge issued on that date. 

That no further relief be granted. 

c.  That a copy of the Report of Proceedings be filed in 

Petitioner's  naval record. 

d.  That, upon request, the Department of Veterans Affairs 

be informed that Petitioner's  application was received by the 
Board on 30 March 2000. 

4 .   It is certified that a quorum was present at the Board's 
review and deliberations, and that the foregoing is a true and 
complete record of the Board's  proceedings in the above entitled 
matter. 

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ROBERT D.  ZSAIMAN 
Recorder 

Acting Recorder 

5 .   Pursuant to the delegation of authority set out in Section 6 
(e) of the revised Procedures of the Board for Correction of 
Naval Records  (32 Code of Federal Regulations, Section 723.6 
(e)) and having assured compliance with its provisions, it is 
hereby announced that the foregoing corrective action, taken 
under the authority of reference (a) , has been approved by the 
Board on behalf of the Secretary of the Navy.